Scary America

The true measure of the greatness of any society that holds liberty, equality, and due process sacred before the law, is not how it treats its citizens in time of peace and tranquility, but how it treats them in time of strife when it is all to easy to smother liberty in the name of preserving the Republic. [watchblog.com]

It is hard to imagine that America would look kindly on a foreign government that demanded the right to hold some of its own citizens in prison, incommunicado, denying them access to legal assistance for as long as it thought necessary, without ever charging them with a crime. Nevertheless, that is the position that George Bush's administration has tried to defend in the courts [The Economist]

Once admired around the world as the land of democracy and freedom, America has changed for the worst. In the name of security, the powers of the police, the military and the defence forces have grown beyond belief. The powers that be can strip away a person's security, freedom and constitutional rights. They can, and do, perform acts that any other nation would deem reprehensible.

Maher Arar, a naturalized Canadian citizen asserted in a federal law suit that United States officials plucked him from Kennedy International Airport when he was on the way home on Sept. 26, 2002, held him in solitary confinement in a Brooklyn detention center and then shipped him to his native Syria to be interrogated under torture because officials suspected that he was a member of Al Qaeda.

Syrian and Canadian officials have cleared Mr. Arar, 35, of any terrorist connections, but United States officials maintain that "clear and unequivocal" but classified evidence shows that he is a Qaeda member. They are seeking dismissal of his lawsuit, in part through the rare assertion of a "state secrets" privilege.

Judge David G. Trager of United States District Court prepared several written questions for lawyers on both sides to address further, including one that focused pointedly on Mr. Arar's accusations of illegal treatment in New York. He says he was deprived of sleep and food and was coercively interrogated for days at the airport and at the Metropolitan Detention Center in Brooklyn when he was not allowed to call a lawyer, his family or the Canadian consul.

"Would not such treatment of a detainee - in any context, criminal, civil, immigration or otherwise - violate both the Constitution and clearly established case law?" Judge Trager asked.

The reply by Mary Mason, a senior trial lawyer for the government, was that it would not. Legally, she said, anyone who presents a foreign passport at an American airport, even to make a connecting flight to another country, is seeking admission to the United States. If the government decides that the passenger is an "inadmissible alien," he remains legally outside the United States - and outside the reach of the Constitution - even if he is being held in a Brooklyn jail.

Even if they are wrongly or illegally designated inadmissible, the government's papers say, such aliens have at most a right against "gross physical abuse."

You can read the entire story on the NYT website - it makes for some scary reading. The change in attitude is best summed up by Dennis Barghaan, who represents former Attorney General John Ashcroft, one of the federal officials being sued for damages in the case. He argued that Congress and recent judicial decisions tell federal courts "keep your nose out" of foreign affairs and national security questions, like those in this case.