Jewish World Review
http://www.jewishworldreview.com | (KRT) In the two years since the Sept. 11 attacks, the Bush administration imposed harsh tactics in its war on terrorism:
It held two U.S. citizens in naval brigs without access to lawyers or the outside world.
It imprisoned hundreds of foreigners indefinitely at a U.S. naval base in Cuba.
It subjected thousands of foreign visitors to mass interviews at home.
Yet over the past three weeks, the government has softened all of those tactics.
It has done so on the eve of an election year when Democrats have charged that the administration's anti-terrorism policies have caused setbacks for civil rights. The administration's moves also came as challenges of some of the policies have landed before the Supreme Court, which would rule on their constitutionality by early summer - in mid-campaign.
"A big part of politics is timing, and what have the Democratic candidates been talking about but the attack on basic fundamental liberties?" said Christine Harrington, a professor of politics with the Institute for Law & Society at New York University law school. She said the administration "looks like they're responding to their critics. But I think they're taking the winds out of their critics' sails."
Washington-area Republican political strategist Neil Newhouse said he doesn't believe that recent shifts in policy were politically motivated - but they will have a political impact.
"It softens some of the edges of what some of the Democrats may hit him or would like to hit him (with) on the rights of these individuals, and it takes away a potential avenue of attack," he said.
On Dec. 2, the Pentagon announced it would allow one of two U.S.-born suspects designated as enemy combatants and held incommunicado to have access to a lawyer. The day before that, the Homeland Security Department ended the controversial mass interviews of foreign male visitors started by the Justice Department last year.
The week before, the Defense Department announced a kinder, gentler version of military trials for some terrorist suspects held at Guantanamo Bay, Cuba. In a pact with the Australian government, the U.S. military said it would not seek the death penalty in any military trials for Australian detainees. It also agreed to hold open proceedings.
For one of the detainees, David Hicks, the government pledged to allow unmonitored lawyer-client discussions and to let him serve any sentence in an Australian prison.
That same week, the Pentagon leaked word that more than 100 of the 660 detainees being held at Guantanamo would soon be released to their home countries.
But the first sign of a changing tide came on Nov. 17, when Deputy Solicitor General Paul Clement for the first time suggested that Brooklyn, N.Y.-born Jose Padilla, designated as an enemy combatant, would be afforded access to a lawyer once interrogations of him ended.
Like the other policy changes, the administration maintains that allowing Padilla a lawyer should be left to the government's discretion.
"Trust the executive to make (a) judgment about intelligence value," Clement told a panel of appellate judges.
President George W. Bush designated Padilla an "enemy combatant" 18 months ago after intelligence sources said he had offered to help al-Qaida unleash a radiological "dirty bomb" on U.S. soil. Padilla has been held incommunicado since then in a naval brig in Charleston, S.C. The government has fought attempts by his lawyers to gain access to him, citing the president's authority to designate enemy combatants and hold them for the duration of the war.
That argument hasn't changed. What has changed is the Padilla case is one step away from a Supreme Court appeal.
A federal judge in New York has ordered the administration to give Padilla access to a lawyer. Clement was appealing that decision on Nov. 17, when he suggested Padilla could at some point be allowed an attorney.
With that appeals court decision pending, the Defense Department Dec. 2 took that approach even further in the case of the other U.S.-born man accused of being an enemy combatant, Yaser Esam Hamdi, captured with Taliban fighters in late 2001.
After three months at the U.S. naval base at Guantanamo and 20 months in a naval brig in the United States, Hamdi can now have access to a lawyer, officials announced, "because DOD has completed its intelligence collection with Hamdi."
Hamdi's case has already reached the Supreme Court. The administration is trying to persuade the high court that it doesn't need to review the legality of Hamdi's detention, which was upheld by a federal appeals court in Virginia.
The softening of policy toward the foreign terrorist suspects held at Guantanamo also came on the heels of activity in the Supreme Court. On Nov. 10, the justices agreed to take up the case filed on behalf of 16 detainees who want to challenge their detention in American courts. The Bush administration has argued that because they're being held on foreign soil, detainees have no access to U.S. courts.
A former Justice Department official who spoke on condition of anonymity said the recent tweaking of administration policies may reflect a political pitch to the court - not necessarily to voters.
"From a purely political perspective, if the court is concerned about the basic balance between civil liberties and government power, and the government has become more flexible on other issues, it might make the court less concerned if it sees the government is granting lawyers at home," said the official.
Eugene Fidell, a Washington-based military law expert, said some of the policy changes - particularly the U.S.-Australian accord over the treatment of their detainees in military tribunals - may ignite, rather than dampen, controversy.
"Observers of this field wonder, `How can you have distinctions made between detainees based on nationality?' " said Fidell, who noted that the third Geneva Convention bans discrimination of prisoners of war based on nationality. The Bush administration has said the Geneva Convention doesn't apply because the detainees were "unlawful" combatants.
"There's going to be a traffic jam outside the State Department as numerous countries line up saying, `Where's mine?' " Fidell said.
James Zogby, president and co-founder of the Arab-American Institute in Washington, welcomed the Homeland Security decision last week to end the mass interviews of male visitors from 25 nations, most of them Arabic or Muslim nations. But he said that change, by itself, will not be enough to overcome soured opinions of the Bush administration among Arab-Americans.
Of the 83,519 called in to local immigration offices in the past year, 13,799 were sent to deportation hearings mainly for visa violations, even though in some cases they had applications pending to change their status.
"These are the guys that obeyed the law, and we argued for them to go in and register," Zogby said. "So, until they resolve all of those cases, the damage that was done remains damage done. In the most recent polling we did back in July, Bush had dropped down to the low 30 (percent), among those Arab-Americans who would vote to re-elect, and it was at 45 percent in 2000. … I'm glad that we're beginning to deal with some of these problems, but we've got a lot more to do before the house is clean."
Homeland Security spokesman William Strassberger said such public outcry over the program did not affect the decision. With almost 83,000 interviews scheduled over the next months, the department decided to scrap the mass approach and do more targeted interviewing.
"The change wasn't done as a result of pressures or other influences," Strassberger said. "The program was too manpower-intensive. We feel we can be more effective in meeting national security needs by targeting our resources."
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