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Moderated by David Broder
November 13, 2002
Let me give what I think is the most dramatic example of the assertion of power made by our government. If the administration has its way legally, anyone in this room, any American citizen anywhere, could be picked up and detained indefinitely in a Navy brig or a military prison, barred from seeing a lawyer, not subject to indictment or trial, but just detained indefinitely. How? Simply by the president designating that person an enemy combatant, a designation which could not be challenged in any court but which would just sit there. To me the proposition is so amazing that even as I utter it it's hard for me to believe, but it is in fact what has happened. In two cases the government has made exactly that assertion.
There are two people called Hamdi and Padilla, Padilla perhaps most traumatic. He was a kid from Chicago who was in prison for some offense, never became clear what it was, some domestic offense, became a Muslim while in state prison, went to Pakistan, returned and at O'Hare Airport in Chicago was picked up, arrested and taken to New York by the FBI where he was to be held as a material witness, having to do in some undescribed way with terrorism. The government obtained a material witness warrant from a federal judge and the judge set a hearing for June 11 of this year at which Mr. Padilla, or rather his lawyer, he had a lawyer, could contest the material witness warrant. But on June 9 President Bush designated him an enemy combatant and he is in a military prison, unable to communicate with a lawyer, unable to lodge any kind of protest, to speak to anybody, not able to see a lawyer even though he had a lawyer, not able to see that lawyer. That's the claim. It's the claim that's so troubling to me. It's a claim of presidential power, I think beyond anything I've known in my life, over individuals. And it's not the only thing.
I don't want to give you a laundry list, but a lot of other things have happened. You know that a large number of aliens were picked up, detained, again in secret, their names not disclosed, more than a thousand. The government suddenly ordered all deportation hearings of a certain category, which the government would define, to be closed, secret. Two courts have passed on the propriety, the legality, of holding those hearings in secret for asserted security reasons. And they came to opposite conclusions. The United States Court of Appeals for the Sixth Circuit in Ohio said that could not be done. The United States Court of Appeals for the Third Circuit in Pennsylvania said it could be done. So the Supreme Court will presumably decide that issue. There are numerous other instances. My general view is that security assertions by the government almost inevitably, when they do get challenged, when they are examined in court, prove to be threadbare. That was so in the Pentagon Papers case. It's been so in case after case.
There was a great case shortly after World War II. It involved a woman named Ellen Knauff, whom not many people, I daresay, remember. She was a German war bride. An American soldier had married her in Germany and brought her back, but she was stopped at Ellis Island and the United States authorities refused to let her into the country because she was some kind of risk, but would not tell her why, would not tell her any evidence against her. The case went to the Supreme Court of the United States, which by a closely divided vote upheld the governmentıs position. The dissent was by Joseph Robert Jackson, a former attorney general, who said among other things, "Security is like liberty in that many are the crimes committed in its name."
The end of the Ellen Knauff story is indicative. Because of the divided Supreme Court decision and the publicity around it, the Justice Department was so embarrassed that it let Ellen Knauff into the country. Never told her the reason she was first barred, never disclosed its hand, but it let her in. The light of day forced on that case by the fact that it was in court changed the outcome. We don't know what might happen to Mr. Hamdi or Mr. Padilla, the two cases I mentioned earlier, or to any of these cases, if the light of day was on them. That's our business, the light of day. Justice Brandeis said, "Sunshine is the best disinfectant," and he meant the sunshine of publicity, the sunshine of citizen knowledge of whatıs going on.
Now I want to tell you, if you look at history, ladies and gentlemen, you can't be terribly optimistic that our profession, the press, will behave with diligence and courage and willingness to risk unpopularity on these issues of domestic civil liberty, because on the whole over history we have succumbed to executive branch cries of security and wartime necessity. That was true in World War I when, under something called an Espionage Act, Eugene Debs, great socialist leader and candidate for president, was sent to prison for 10 years for criticizing conscription, selective service, the draft. Under that same statute, a group of radicals who threw leaflets from the tops of buildings in New York protesting President Wilson's dispatch of troops to Russia after the Bolshevik Revolution, in other words criticizing a presidential policy decision, were sent to prison for 20 years. Twenty years.
Where was the press in the outrage that followed shortly after that? When Attorney General Mitchell Palmer sent thousands of people oversees on the claim that they were radicals of some kind or another, after no proceeding, after no fair hearing? Where was the press when the Japanese-Americans on the west coast were held in concentration camps in Utah during World War II? One magazine, Harpers, published a chilling article objecting to that process, but most of the press was absolutely silent. Where were we--well, we were there eventually, but rather slowly--during the excesses of the Cold War red scare in this country? We came very slowly to understand the price of that.
So, all I can say--I donıt mean to be too gloomy because I love my profession and I think the people in it are wonderful. I love that more than anything, my sense of collegiality and my respect for my colleagues like the ones sitting at this table. I think they know better now. Maybe we're all more attuned to civil liberties. So, I have a degree of hope, a degree of hope that we will do better this time and that the press will not allow these injustices to continue without determined exposure. Thank you.
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