Kristian Williams - Our Enemies in Blue - Police and Power in America

interim regulation, detainees who have been ordered released by a court may stillbe held until the order can be appealed. Another interim regulation issued on thesame date allows federal authorities to monitor privileged attorney-client communications.I"And new Department of Justice rules allow local and state policeto be deputized for immigration control.156Perhaps most chilling, a November 2001 executive order authorized the useof military tribunals to try "enemy combatants," including U.S. citizens.157 As theCenter for Constitutional Rights points out, this ordergives the President the power to decide who will be tried under the newsystem, to create the rules by which trial will proceed, to appoint thosewho will serve as judge, prosecutor, and defense attorney, to set penaltiesonce guilt is determined (induding death) and to decide all appeals. 158These unilateral extensions of executive power have prompted predictable courtbattles, the final outcomes of which have yet to be determined.159While legal maneuvering and bureaucratic in-fighting leave a great manydetails in flux, the overall direction of events is clear enough: toward governmentsecrecy, away from individual privacy; expanding state power, diminishingindividual rights. 16 0 Former Attorney General John Ashcroft sounded eerilylike ]. Edgar Hoover as he explained the administration's intentions: 'We aredoing everything we can to identify those who would hurt us, to disrupt them,to delay them, to defeat them."161As with the Palmer Raids and the internment of Japanese Americansduring World War II, the rights of immigrants have been hardest hit, thoughthe level of actual impact has been difficult to measure. While the governmentproved quite enthusiastic about locking up the tired, the poor, thehuddled masses, it was less eager to say exactly how many people havebeen detained. The official total placed the number at 1,147, a figure humanrights advocates suspect is deceptively low. 162Many detainees were held incommunicado. They were commonly deniedlegal representation and their families were not told where-or in somecases, whether-they were in custody. 163 While Ashcroft called the detainees"suspected terrorists," none were charged with a crime related to terroristactivity. 164 In fact, the Justice Department estimated that only ten or twelveof those held were connected to AI Qaeda, and documents released underthe Freedom of Information Act show that, of the first 725 arrested, 300 wereof no interest to any investigation of terrorism.165 Yet in a clear inversion ofthe presumption of innocence, the detainees were held under the pretextof minor immigration violations until the authorities could be convinced oftheir innocence; they were then either released or deported.166 GeorgetownUniversity law professor David Cole pointed out the obvious:The real reason for their incarceration is not that they worked withoutauthorization or took too few academic credits, for example. Rather, thegovernment used these excuses to detain them because it thinks theyjust might have valuable information, because it suspects them but lacksevidence to make a charge, or simply because the FBI is not yet convincedthat they are innocent. 167173