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The Honolulu Advertiser
Posted on: Saturday, May 4, 2002

Antiterror efforts causing misgivings

The war on terrorism will never end, in the sense that desperate people will always resort to desperate measures. Ultimately, then, our long-term goal should be to end the global desperation that leads to terrorism.

In the meantime, however, we will have lost the war on terrorism if it compels us to abandon our constitutional rights and freedoms.

More and more, it appears the Bush administration has resorted to serious constitutional overkill of several sorts in the admittedly ticklish problem of promoting homeland security in the wake of Sept. 11.

Last month, a New Jersey court ruled that the administration's secrecy about hundreds of detainees is unlawful, as was its withholding of the identities and alleged offenses of those being held.

More than 1,000 seized

Ashcroft's crackdown, which led to more than 1,000 detentions at one stage, has so far led to only one person being charged with a crime linked to Sept. 11. Most are being held on immigration charges or have yet to be charged. When you think about it, these detentions alienate the very people the Justice Department must depend upon for leads.

Two remarkable decisions this week by a New York federal judge threw out charges against one terror-probe suspect and ordered the feds to stop jailing people as material witnesses. The judge said Ashcroft's practice of seizing witnesses for grand jury testimony — used extensively since Sept. 11 — "poses the threat of making detention the norm and liberty the exception."

The judge also blasted the use of the material-witness statute for the purpose, as Ashcroft had put it, of "preventing, disrupting or delaying new attacks."

It's impermissible to use the statute "to detain people who are presumed innocent under our Constitution in order to prevent potential crimes," the judge said.

Islamic charity

Also this week, a Chicago area Islamic charity and its director were indicted and accused by the FBI of supporting terrorists who may have tried to obtain nuclear weapons for Osama bin Laden.

On closer inspection, however, it appears the defendant, Enaam Arnaout, is not charged with any crime relating to terrorism or its support, but with perjury. When his charity's assets were frozen in December, he sued to have that action reversed, saying in his lawsuit that his foundation doesn't finance terrorism or military activity.

That's a lie, says the Justice Department, and it is the basis of its perjury charge.

We form no opinion about whether Arnaout and his charity are guilty of helping terrorists. But if they are, it seems incumbent upon the authorities to find a way to charge him with a crime, rather than lying about one.

Approach is Kafkaesque

In these instances, at any rate, the Ashcroft approach is Kafkaesque and un-American. Congress must overcome its understandable initial hesitation and insist on a course consistent with our Constitution.