New York Times Editorial
November 10, 2001

Disappearing in America

Thousands of detainees being held in secret by the government; wiretaps on prisoners' conversations with their lawyers; public debate about the advisability of using torture to make suspects talk. Two months into the war against terrorism, the nation is sliding toward the trap that we entered this conflict vowing to avoid. Civil liberties are eroding, and there is no evidence that the reason is anything more profound than fear and frustration.

We trust the Bush administration is not seriously considering torture an idea that seems more interesting to radio talk shows and columnists than to government officials. But Attorney General John Ashcroft has been careless with the Constitution when it comes to the treatment of people arrested in the wake of Sept. 11, raising fears he will be similarly careless when it comes to using the broad new investigative powers recently granted him by Congress. A new rule just imposed by Mr. Ashcroft allows the government to listen in on conversations and intercept mail between prison inmates and their lawyers in effect suspending the Sixth Amendment right to effective counsel. He has also refused to provide basic information about the 11,000-plus people who have been arrested and detained in the course of the government's terrorism investigation.

Even the White House seems uninformed. Questioned about the mass detentions early last week, the president's spokesman, Ari Fleischer, responded that "the lion's share" had been released after questioning. He was forced to backtrack and concede that he did not know any exact numbers when the Justice Department gingerly noted that a majority of all detainees remained in custody.

To justify these extreme measures, the administration has been floating theories about what detainees might have done or known, which turn out upon further investigation to be unfounded. The Justice Department has backed away from Mr. Ashcroft's recent suggestion that three Arab men in custody in Michigan had advance knowledge of the Sept. 11 hijackings. Although the men were suspected of having links to Al Qaeda at the time of their arrest, law enforcement officials have said that no hard evidence to that effect has since emerged.

The limited need for secrecy while investigating domestic terrorism hardly justifies blanket stonewalling. Mr. Ashcroft says that his strategy of "aggressive detention of lawbreakers and material witnesses" has been vital in preventing new horrors. That assertion has to be taken on blind faith, and it would be easier to accept if the attorney general had shown more overall restraint. But his definition of the Bill of Rights includes eavesdropping on lawyer-client conversations and withholding from the public such key facts as the identities of those still in custody, the reason for their continued detention including any charges filed and the facilities where they are being held. The secrecy even extends to refusing to explain the resort to secrecy. Meanwhile, reports suggest that some detainees cleared of any connection with terrorism have been held under harsh conditions for prolonged periods, and denied a chance to notify relatives of their whereabouts.

It is time the White House stepped in. Just as President Bush advises Americans to learn to lead their normal lives while being ever watchful for terrorism, the Justice Department can investigate domestic attacks while respecting the basic rights that we are in this war to preserve.

Copyright 2001, New York Times Company. All rights reserved.

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