By Dahlia Lithwick
Sunday, December 31, 2006; B02
I must confess that I love all those year-end lists of greatest movies and albums and lip glosses and tractors of the past 12 months -- it's reassuring that all human information can be wrestled into bundles of 10. In that spirit, herewith are my top 10 civil liberties nightmares of 2006.
10) Attempt to Get Death Penalty for Zacarias Moussaoui: Long after it was clear that the hapless Frenchman was neither the "20th hijacker" nor a key plotter in the attacks of 9/11, the government pressed to execute him as a "conspirator" in those attacks. Moussaoui's alleged participation? By failing to confess to what he may have known about the plot, which could have led the government to disrupt it, Moussaoui directly caused the deaths of thousands of people. This massive over-reading of the federal conspiracy laws would be laughable were the stakes not so high. Fortunately, a jury rejected the notion that Moussaoui could be executed for the crime of merely wishing there had been a real connection between himself and 9/11.
9) Guantanamo Bay: After the Supreme Court struck down the military tribunals planned to try hundreds of detainees on the U.S. base in Cuba, and after President Bush agreed that it may be a good idea to close down the prison, the worst public relations fiasco since the Japanese internment camps lives on. Prisoners once deemed "among the most dangerous, best-trained, vicious killers on the face of the Earth" are either quietly released or still awaiting trial. The lucky 75 to be tried there will be cheered to hear that the Pentagon has just announced plans to build a $125 million legal complex for the hearings. The government has now officially put more thought into the design of Guantanamo's court bathrooms than the charges against its prisoners.
8) Bashing the Media: Whether the Bush administration is reclassifying previously declassified documents, sidestepping the Freedom of Information Act, threatening journalists for leaks on dubious legal grounds or, most recently, using its subpoena power to try to wring secret documents from the American Civil Liberties Union, the administration has continued its "secrets at any price" campaign. Is this a constitutional crisis? Probably not. Infuriating? Definitely.
7) Slagging the Courts: It starts with the president's complaints about "activist judges" and evolves to congressional threats to appoint an inspector general to oversee federal judges. As public distrust of the bench is fueled, the stripping of courts' authority to hear whole classes of cases -- most recently any habeas corpus claims from Guantanamo detainees -- almost seems reasonable. Each tiny incursion into the independence of the judiciary seems justified. Until you realize that the courts are often the only places that will defend our shrinking civil liberties. This leads to . . .
6) The State Secrets Doctrine: The Bush administration's argument in court is that judges should dismiss entire lawsuits over many of the outrages detailed on this very list. Why? Because the outrageously illegal things are themselves matters of top-secret national security. The administration has raised this claim in relation to secret wiretapping and extraordinary renditions. A government privilege once used to sidestep civil claims has mushroomed into broad immunity for the administration's sometimes criminal behavior.
5) Government Snooping: Take your pick. There's the continued defense of the National Security Agency's warrantless eavesdropping program wherein the president breezily authorized spying on the phone calls of innocent citizens, in violation of the Foreign Intelligence Surveillance Act. The FBI's Talon database shows that the government has been spying on non-terrorist groups including Quakers, People for the Ethical Treatment of Animals, and Veterans for Peace. And that's just the stuff we know about.
4) Extraordinary Rendition: So when does it start to become "ordinary" rendition? This government program has us shipping unindicted terrorism suspects abroad for interrogation/torture. Khalid El-Masri, a German citizen, was sent off to Afghanistan for such treatment and then released without charges, based on some government confusion about the small matter of his name. Canadian citizen Maher Arar claims he was tortured in Syria for a year, then released without charges. Although Arar was cleared by a Canadian commission, the government denies wrongdoing.
3) Abuse of Jose Padilla: First, he was "exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States," according to then-Attorney General John D. Ashcroft. Then, he was planning to blow up apartments and, later, was part of a vague terrorism conspiracy to commit jihad in Bosnia and Chechnya. Always, he was a U.S. citizen. After 3 1/2 years in which he was denied the most basic legal rights, it has emerged that Padilla was either outright tortured or near-tortured and, according to experts, is too mentally damaged now to stand trial. The Bush administration supported his motion for a mental competency assessment, in hopes that such a motion would help prevent his torture claims from going to trial. As Yale Law School's Jack Balkin put it: "You can't believe Padilla when he says we tortured him because he's crazy from all the things we did to him."
2) The Military Commissions Act of 2006: This was the "compromise" legislation that gave Bush even more power than he initially had to detain and try so-called enemy combatants. He was effectively handed the authority to define for himself the parameters of interrogation and torture.
1) Hubris : Whenever the courts push back against the administration's unsupportable constitutional ideas -- ideas about "inherent powers" and a "unitary executive" or the "quaint" Geneva Conventions or the limitless presidential powers during wartime -- the Bush response is to repeat the same chorus louder: Every detainee is the worst of the worst, every action taken is legal, necessary and secret. No mistakes, no nuance, no regrets.
Did I miss anything? Let me know. In the meantime, here's wishing you a happy and freer New Year.
Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com.