Freedom Newspapers of New Mexico
In 2001, a columnist for the conservative magazine National Review wanted to know why Democrats were shutting out top Justice Department officials from hearings dealing with the Patriot Act, and its impact on civil liberties and American freedoms.
Byron York wanted to know why Viet Dinh, who helped draft the act as a top Justice official, wasn’t called to testify. York noted that the Senate Judiciary Committee only invited Justice criminal-division head Michael Chertoff after requests that it do so from Justice officials.
A lot has happened in two years. But it’s fascinating that the two men that supporters of the Patriot Act trusted to stand up for the act and the Justice Department’s handling of its provisions, in recent weeks have expressed concerns about the policy. Dinh, now a Georgetown University law professor, and Chertoff, now a federal judge, have both made headlines with their succinct criticisms.
In public speeches and in an interview with the Los Angeles Times, Dinh questioned the lack of due process afforded Jose Padilla, an American citizen who is being held in military prison as an enemy combatant as a suspect in a “dirty bomb” plot. He has been denied access to a lawyer and other rights granted American citizens under the U.S. Constitution.
“The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to,” Dinh told the Times. “But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated.”
No wonder this is big news: The architect of the Patriot Act and of the Justice Department’s anti-terror policy is questioning its use in a significant case. Furthermore, Chertoff is even more forceful in his criticism. According to published reports, the judge said in a recent speech:
“We need to debate a longterm and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available.”
Even though the U.S. government has announced it will release about 20 percent of the enemy combatants held at Guantanamo in Cuba, that does not change the importance of Dinh’s and Chertoff’s criticisms. The government needs a formal, constitutional process for the detention and release of combatants and alleged combatants. That’s especially true when it comes to U.S. citizens.
We wonder whether Patriot Act supporters such as York would be so eager to have Dinh and Chertoff express their views these days in a congressional committee.