E-Mail This Article to a Friend Crossing the threshold While we’re all fretting over the Patriot Act, John Ashcroft’s Justice Department is after much bigger game BY HARVEY A. SILVERGLATE AND CARL TAKEI

ONE DAY IN 1985, Dr. Wolfgang Vogel, the famed East German "spy trader," sat down to breakfast at Boston’s historic Parker House with an American lawyer he had retained to defend an East German physicist accused of spying. As they discussed the case, the lawyer noticed two men at a nearby table wearing trench coats despite the indoor warmth. He whispered to Vogel that he suspected they were FBI agents. "What makes you think they are FBI?" asked Vogel. "Their trench coats," the lawyer replied. Vogel smiled wryly: "They could just as easily be KGB. They all get their trench coats from the same manufacturer, you know."

Vogel knew this much about intelligence and law-enforcement officials on both sides of the Iron Curtain: they all shared the same "trench coat" motivations and instincts, regardless of ideology. There was just one difference, but it was all-important to the outcome of their work: those in the West, and particularly in the United States, were constrained by legal institutions that temper individual excesses and abuses of state power. In the Anglo-American West, the culture itself had been shaped by the rule of law.

But as everyone knows, "everything changed" on September 11, 2001, perhaps most worrisomely the rule of law. Indeed, among all the national-security measures taken since that fateful day — including two major foreign wars and the establishment of the Department of Homeland Security — none has been more controversial than the USA Patriot Act. Personally shepherded through Congress by Attorney General John Ashcroft, it authorizes the kinds of things that send shivers down civil libertarians’ spines: invasions of personal privacy, restrictions on financial transactions, racial and ethnic profiling, blurring the line between foreign intelligence and domestic law enforcement, and punitive registration requirements for immigrants and visitors. And that’s just a partial list.

Yet the hue and cry raised over the Patriot Act has distracted most of us from the Bush administration’s far more dangerous assault on another class of liberties, which might be called "threshold rights." After all, the Patriot Act can be rolled back if the people decide that the government has overreached or the emergency has receded, and some provisions of the act have automatic expiration dates. But threshold rights — fair elections, open and publicly accountable government, judicial review of executive action, the right of the accused to a public jury trial, separation of powers among the three branches of government, and the rights to free expression and free association — are structural, and therefore changes to them are more enduring.

Threshold rights enable civil society to know what government is doing and to rein in abuses. Think of it this way: temporary restrictions on some forms of privacy enable the government to know what you are doing, which is troubling enough. Threshold rights enable you to know what the government is doing, and that’s why they form the core of democratic society. The degree to which a society protects threshold rights speaks to whether it is free and open, and whether self-correction can occur without violence. If the press is free, the electorate has open elections, and the courts are performing their sworn duty, even a president who tries to assume the powers of an emperor can be dealt with.

Attacks on threshold rights supposedly justified by the "war on terrorism" are particularly menacing because this war has no foreseeable end, and the dangers are indisputably real. Nor will the war be contained geographically; as Ashcroft warned the House Judiciary Committee in June 2003, he now considers the streets of the nation to be "a war zone." On Ashcroft’s domestic battlefield, threshold liberties are indeed under grave attack, and none with more alarming success, at least thus far, than the right to judicial oversight of the executive branch, specifically the writ of habeas corpus — the oldest and most fundamental right of free citizens in the Anglo-American legal tradition.

THE WRIT OF habeas corpus (Latin for "you have the body") compels the executive branch to produce a prisoner and disclose the legal basis for his or her detention, so the court may decide whether that detention is constitutional. This procedure, which stems from the English Magna Carta of 1215, lies at the very heart of constitutional government, consisting of separated powers guided by the rule of law. Without habeas corpus, there is nothing to prevent the executive from locking a person up without charge or lawful justification, never to be heard from again. Known appropriately in English history as the "Great Writ," habeas corpus is the brilliant light that protects Americans from the gulag. In a world where many governments have the power "to lock them up and throw away the key," habeas requires the judiciary to keep a spare key. In fact, the check habeas provides on executive detention powers doesn’t stop with the courts: the US Constitution grants power to suspend the writ only to Congress, and even then only in the event of "rebellion or invasion."

The government’s assault on habeas corpus began six days after September 11, when Attorney General Ashcroft circulated draft legislation — what would soon become the Patriot Act — that included provisions for suspending the writ. As reported in Steven Brill’s book After: How America Confronted the September 12 Era, Republican Wisconsin representative James Sensenbrenner, chair of the House Judiciary +, made it clear to the attorney general that habeas suspension was a "nonstarter" and that he wanted it out of the bill. The provision quietly evaporated from subsequent drafts, but Ashcroft has since pursued alternate means of circumventing habeas protections.

Some of the most fundamental changes are gaining ground through a strategy best described this way: start with the right test cases, keep the judiciary from interceding, and keep the press from learning too much by, for example, refusing to release the names of foreign prisoners and keeping case dockets under seal. If these changes remain below the radar of Congress and the people, and if they are left unchecked by our courts, it will be exceedingly difficult for fundamental liberty to recover even when the current crisis has passed.

Once threshold rights are stripped away, the only thing that stands between any of us and arbitrary imprisonment is the good will of the president, the attorney general, and the secretary of defense. Even if one trusts the judgment of the current occupants of these offices, to leave such power in their hands (and those of their successors) would violate the clear intent of the drafters of the Constitution. As Supreme Court justice Felix Frankfurter once wrote: "The historic phrase ‘a government of laws and not of men’ epitomized the distinguishing character of our political society.... [F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power, however disguised."

Fortunately, there is good reason to believe that the Supreme Court sees the need to balance liberty against security in Frankfurter’s terms. Such optimism might come as a surprise to many, since the court has turned down opportunities to consider a variety of questionable governmental practices that have burst onto the scene since 9/11. But over the past three months, the court has agreed to review three cases that, taken together, go to the heart of habeas corpus. All concern the question of whether the president has unchecked authority to seize and hold a variety of prisoners as "enemy combatants," and to what extent the other branches of government — particularly the courts — should play a role in constraining such power.

The first case involves the consolidation of Rasul v. Bush and Al Odah v. United States, appeals by several prisoners being held at a remote US military base in Guantánamo Bay, Cuba. The question here is, can the federal courts review the legality of their detention and the government’s plans for them? Because these prisoners are foreign nationals captured outside the territorial limits of the United States, the Departments of Justice and Defense claim that the courts have no business even asking why they are detained. In effect, the government’s argument is that Guantánamo should amount to an American-controlled gulag — a no-man’s land where unrestrained presidential power prevails.

After agreeing to review the Guantánamo case in November, the court surprised the DOJ and ordered a second case placed on its docket: the habeas corpus petition of Yaser Hamdi, an American citizen captured abroad and now being held in a US Naval brig off the coast of Virginia. During the 2001 war in Afghanistan, Northern Alliance forces had captured Hamdi, whom they described as armed and loyal to the Taliban, and handed him over to the US military. Hamdi’s father filed a habeas corpus petition in June of 2002, seeking judicial review of his son’s detention since the son, held incommunicado, could not file himself.

Hamdi, who lost his case in the lower courts and sought Supreme Court review, offers a variation on the question raised by the Guantánamo petition: whether an American citizen captured on foreign soil may be held in this country, designated an enemy combatant, and held in essentially the same status as the Guantánamo prisoners. In Hamdi v. Rumsfeld, the government’s claims are not quite as bold as in the Guantánamo case; it does not claim that the courts have no authority at all, but rather that the courts’ power extends merely to hearing why the government chose to treat a citizen in this fashion — not to question its decisions.

Once the Supreme Court agreed to hear Hamdi, the DOJ sought the court’s review in a third case, that of another American citizen, Jose Padilla. Unlike Hamdi, Padilla was arrested in the US, but he too was designated an enemy combatant and held incommunicado in a military brig with neither charges lodged against him nor rights granted to him. When a lower court sided with Hamdi’s claim that he was entitled to meaningful habeas corpus review, the DOJ had little choice but to seek the court’s review of Padilla v. Rumsfeld.

The cases of the Guantánamo prisoners, Yaser Hamdi, and Jose Padilla, will be decided by the time the court takes its summer recess. What’s at stake in all three is essentially whether we are governed by a president or a king. All other post-9/11 legal issues pale in comparison.

Some people believe themselves insulated from all this because Ashcroft’s extreme measures have been targeted more heavily at foreigners and citizens of recent foreign origin — people with names like Yaser, Iyman, and Ali, whom native-born citizens with native-born parents could easily dismiss as being "them" rather than "us." Indeed, in an August 19, 2003, speech, Ashcroft defended the Patriot Act in part by asserting that most Americans feel safe from its reach. Under our system of laws, however, such confidence is misplaced. The Bill of Rights insists that all persons be treated not only fairly, but equally. This constitutional mandate is bolstered by the common-law notion that previous court decisions serve as precedents that determine the outcome of later cases presenting similar facts. The Supreme Court, in reviewing the three habeas corpus cases before it, may make distinctions between the rights of people held abroad versus within US territorial limits, or between citizens and noncitizens. But it’s pretty clear that these cases are linked in the court’s mind, and that whatever rights the court accords these prisoners will determine the rights of anyone else who ends up on the wrong side of a presidential decree.