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© St. Petersburg Times, published March 17, 2002
If the FBI and federal prosecutors never made a mistake, there would be no need for procedural safeguards. No one charged with a crime would need an attorney or bail or a trial for that matter, since no one who's innocent would ever be arrested, detained or imprisoned.
Unfortunately, that is not reality. We know mistakes happen all the time in the criminal justice system. Just look at the dozens of people released from prison and death row in recent years because new DNA testing procedures proved them innocent.
We are human, which means we are fallible and prone to error, especially when the public is clamoring for vengeance and pressuring law enforcement to find killers who may strike again. At these times, honest judgment sometimes takes a back seat.
But the beauty of our system is that it expects this to happen and was designed with this human failing in mind. Due process -- the term that seems so legalistic and foreign to many non-lawyers -- is really just a series of devices to reduce the adverse consequences of mistakes and self-serving decisions by police and prosecutors.
In the investigation stages, that means a judge oversees wiretapping and searches to make sure the intrusions are justified. After arrest, due process guarantees the defendant reasonable bond, the appointment of a lawyer, the presumption of innocence, a public trial and a jury. All of which help to uncover mistakes and mitigate harm to the innocent.
But since the terrorist attacks of Sept. 11, due process has been seen as an obstruction to be ignored or discarded.
The USA-Patriot Act, which sailed through a supplicant Congress, is a constitutional bulldozer, pushing aside judicial oversight from federal law enforcement investigations. For example, in the past, the FBI could get a wiretap or a search warrant without showing probable cause only for foreign intelligence gathering purposes. But the USA-Patriot Act expands this category of cases to include certain domestic criminal investigations as well. The law also strips away judicial scrutiny from FBI requests to follow someone's movements over the Internet -- again, no probable cause necessary -- and it gives law enforcement agencies wide authority to conduct "sneak and peek" searches in homes or offices without telling the target of the search until much later.
The entire thrust of the law is to give the FBI a way around a judge's eyes -- the very eyes our system charges with looking out for mistakes and misguided zeal.
When President Bush trotted out his order to establish secret military tribunals for non-citizens, he proclaimed that terrorists shouldn't qualify for our constitutional protections. "Non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life," Bush declared.
But the whole point of a trial is to determine in the first instance who is a terrorist and who is an innocent person accused of being one. (As yet, no one has been brought before the tribunal.)
Interestingly, as recently as last year our State Department criticized Egypt for its use of military courts to try civilians accused of terrorism. "Military courts do not ensure civilian defendants due process," the Department stated in its annual survey of human rights abuses. In this year's report, however, that statement was missing.
Then there are those hundreds of detainees picked up during the FBI sweeps following Sept. 11 who have been subject to a shadow system of justice.
Making a mockery of our open process, the Justice Department refused to disclose the names of the people being held. (It still refuses to disclose the names of those being held on immigration violations.) In drips and drabs we learned what has been going on behind the Department's closed doors: Some detainees were held as material witnesses in violation of federal standards, some were held for weeks without charge, some were denied access to lawyers and many were denied bond. Those facing deportation are being tried by immigration courts in closed proceedings with no records available to the public.
The safety devices built into the system to protect the innocent -- to catch the inevitable mistakes -- are being circumvented. How can we check the accuracy of the Department's work when it is thwarting the processes that make it accountable?
When the FBI picked up Dr. Al-Badr Al-Hazmi, a Saudi national, from his home the morning of Sept. 12, it had made inaccurate deductions from sketchy evidence. But those errors could have been cleared up much sooner had the government not blocked his access to his lawyer.
Due process does not undermine law enforcement; it makes police and prosecutors more accurate and responsible. The terrorist threat is being used to justify a new unilateralism by law enforcement, which means tragic consequences for innocent people.
So where does one turn when our government is the one inflicting the terror?