A Critique Of Administration Excesses
Tuesday, August 05, 2003

A Critique Of Administration Excesses

: Last month I linked to a defense of the administration's homeland security policies in response to criticism from civil libertarians. Now, lots of links to examples of administration overreaching in the name of homeland or national security.

Virginia Postrel provides lots of links. Chief among them is Jacob Sullum's dissection of the executive branch's power grab with regard to the designation of "enemy combatants. The "good parts" version:
The requirement that the executive branch detain people only as authorized by Congress is grounded in the Constitution as well as in statute. The separation of powers means the president is supposed to enforce the law, not write it.

The Constitution specifically gives Congress, not the president, the authority to suspend the privilege of the writ of habeas corpus, which allows citizens to challenge their detention. Even Congress may suspend that privilege only when public safety requires it because of rebellion or invasion....

It might seem that the president's power grab, while alarming in principle, has not had much impact in practice, since so far only two citizens (that we know of) have been detained as enemy combatants. Yet the possibility of receiving that designation may already have made it impossible for anyone accused of terrorism to get a fair trial.

The government says the "Lackawanna Six," a group of young men arrested in upstate New York last fall, constituted an Al Qaeda "sleeper cell." But the details reported in the press suggest they were half-hearted wannabes rather than committed jihadists. Although they went through training in Afghanistan in the spring of 2001, they never hurt anyone and apparently did not plan to do so.

That does not make them innocent, but it suggests they did not deserve the sentences they received, which ranged from six-and-a-half to nine years. They decided that pleading guilty was preferable to risking indefinite confinement as enemy combatants. As one attorney told The Washington Post, "The defendants believed that if they didn't plead guilty, they'd end up in a black hole forever."

That sort of threat, which has no legal or constitutional basis, makes a mockery of justice.
Check out this Postrel post as well.

Then, there's the administration's penchant for excessive secrecy on all national security matters. This was on display last week with the President Bush's refusal to declassify portions of a Congressional report on the 9/11 attacks. Glenn Reynolds, however, points to an even more obvious example of this kind of behavior, as reported in the New York Times:
he Treasury Department said yesterday that it would decline to provide the Senate with a list of Saudi individuals and organizations the federal government has investigated for possibly financing Al Qaeda and other terrorist groups.

The action was the second in two weeks to set the White House and Congress at odds about the Saudis and federal intelligence-gathering related to the terrorist attacks on Sept. 11, 2001.

Moreover, the move contradicted an assertion made on Thursday by a senior Treasury official, Richard Newcomb, who told the Senate Governmental Affairs Committee in a hearing on Saudi sponsorship of terrorism that the list was not classified and that his agency would turn it over to the Senate within 24 hours.

Yesterday evening, with senators still awaiting the list, the Treasury Department advised the committee that it would soon send a letter declaring the information classified and thus unavailable to the public.

"The information requested relates to ongoing U.S. government efforts to disrupt terrorist financing," Taylor Griffin, a department spokesman, said yesterday. "Public disclosure at this time would frustrate those efforts."
To be fair, the administration line on this is that Newcomb -- head of the Office of Foreign Assets Control -- was wrong about what was classified and what was not.

To be equally fair, Newcomb is a smart, plain-spoken career guy at Treasury -- not someone who would ordinarily misspeak. One wonders if the administration spin on this is related to other political developments at Treasury.


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