Who Needs Civil Liberites? We Have a War to Fight

With the Kerik nomination in the toilet Bush had to find someone that would send a signal how important the job at Homeland security really is. His pick? Michael Chertoff, currently a judge on the US Court of Appeals for the Third Circuit, former head of the Justice Department Criminal Division under John Ashcroft, and former lead counsel to the Senate Whitewater Committee.


Chertoff

In his role fighting the war on terra is where Chertoff has really left his mark. Chertoff, in his official role within the justice department asserted extreme positions suggesting he is perfectly in line with the administrations position on a range of issues hostile to civil rights and liberties.

A good place to look for Chertoff's legal philosophy is in the prosecution of Zacarias Moussaoui , now taking place in the Eastern District of Virginia. Chertoff is not the prosecutor of course, Paul McNulty of the Eastern District is. But Chertoff is McNulty's boss and he is calling the shots. So Chertoff argued the government's case in the super secret hearing before the 4th Circuit Court of Appeals last week. The government is trying to block trial judge Leonie Brinkema's ruling that Moussaoui and his lawyers have access to the government's star witnesses against him. The government has refused and appealed. Judge Brinkema, who still believes in the Constitution, rightly ruled that to deny Moussaoui that access is a blatant violation of the Sixth Amendment right to confront witnesses.

Brinkema indicates that she will not be a party to making exceptions to the Constitution on a case-by-case basis. She, in effect, suggests that maybe Justice better take Moussaoui to Guantanamo and try him there in secret, in the military tribunals they set up. Easy there to not only try him, but convict him, and execute him . So why is the government insisting on keeping him in federal court?

I have the answer, and it lies in Chertoff. Chertoff's goal, I believe, and the goal of Ashcroft and Bush in supporting this prosecution in federal court, is to subject federal trials, as they see fit, to ad hoc exemptions of whatever laws (be they constitutional, criminal code, or rules of procedure) that will suit their purposes. Their grand scheme is to ultimately cripple and dismantle the federal courts as we know them, one brick at a time.

Support for this theory of mine includes their prosecution of attorney Lynne Stewart, for, in effect, zealously representing her client; rules created by Ashcroft that subject attorneys and their clients to surveillance, be they under secret wiretaps issues by the secret FISA court or monitoring of all contacts in prison settings. These procedures came about by fiat from Ashcroft. They make any attorney who represents someone charged with an act of "terrorism" (and a terrorist crime is one defined by Bush and Ashcroft-that is an ad hoc determination, as well).

The Moussaoui case has many examples of legal changes. Moussaoui and even his attorneys (!) cannot receive all documents related to the case, because of "national security" interests. Witnesses may appear in court behind screens (!) so that they cannot be seen. And, the Fourth Circuit hearing last week was closed-closed-for the first time in history. Under Ashcroft we have had secret warrants (or no warrants), secret hearings denying bail, secret trials, and now secret appellate court arguments. Next, we can expect the Supreme Court to be closed, can't we?

The 4th Circuit hearing was close to all but those "screened" and approved by the Justice Department, the Defense Department, and the CIA. The judge presiding over the hearing told the "security" official to jump up if any attorney arguing the case said anything that would jeopardize national security-so that the room could be cleared! Then, as will happen in a trial, the government can proceed out of the presence of the defendant or his attorney. Oh, of course, Moussaoui was not allowed to be at the appellate hearing last week. How is that for a legal system.

Chertoff argued to the 4th Circuit that the Court could not order the government to produce its start witness against Moussaoui because (are you ready?) he, the witness, is out of the country at an undisclosed location. True, but the witness is in the custody of the federal government! The out-of-the country argument is a sham. This is similar to a ruling recently by the federal court that ruled that Guantanmo Bay prisoners had no access to federal courts for claims that they be charged or release because-they are out of the country!! Of course, in federal custody, but that does not matter.

We might have been better off with the dude who knew nuttin' about nuttin' except cronyism. But who needs civil liberties anyway?