We need to stand vigilant for freedom – even at home

Dear Readers, We are still learning as a nation how 9/11 has changed our daily lives, and the government’s response to it, on our legal system.

In the aftermath, we took a “spaghetti on the wall” approach to plugging perceived, if not actual, security holes in our law enforcement community, without really considering the ramifications on our privacy and way of life.

Almost 15 years later, these solutions we came up with before continue to be pulled apart for lack of effectiveness.

The singular enduring emblem of our paranoiac search for safety is probably the detention network at Gitmo.

We came up with a unique system of military tribunals to ensure that terrorists were punished for their evil deeds. The concept of military tribunals is not new; we can go back to the Civil War, at least, for examples of military imposed justice outside of the civilian system.

Remember, President Lincoln’s implementation of tribunals was promptly slapped down by the United States Supreme Court as soon as hostilities ended. The modern version, though, seems to have an immortal life span, which is largely a function of the fact that our “war” on terrorism also has no end in sight.

The problem with modern military tribunals, aside from their questionable constitutional authority, is they have not worked.

Ironically, not a SINGLE enemy combatant has been successfully prosecuted in the tribunal system since the Gitmo compound sprang into existence. Importantly, some of the “terrorists” we have detained at Gitmo in the past, without due process, have now been released.

Some of these individuals, if they were not already terrorists, have since taken to the battlefield against the U.S. to seek revenge on the nation that wrongfully detained them.

But, bypassing the proven checks and balances of our justice system is proving even more problematic in ways never conceived. It turns out that the CIA has been secretly monitoring the proceedings. An emergency censorship system permits for court proceedings to be shuttered by monitors from the ether, whenever sensitive matters are broached.

The problem is that no one knew, until a hearing last year, that the CIA had a secret button to shutter hearings without the judge’s knowledge. According to a recent New York Times piece written by Matt Apuzzo, secret recording devices were scattered around, even letting the CIA snoop on what should have been private and privileged communications.

Things have gotten even nuttier because the tribunal prosecutors have no command and control authority over the law enforcement community. Earlier this month, according to this same article, FBI agents convinced a contractor member of the defense team into an FBI informant after questioning them about the defense team. This breakdown in decorum should worry even the most hard-core conservative.

A separate issue is the terrorist “watch list.” It is a secret list with a purpose and criteria cloaked in mystery.

Unfortunately, in our haste to protect ourselves (and, mind you, the watch list did not stop the Boston Marathon Massacre), innocent civilians are having their lives tossed upside down.

Rahinah Ibrahim, an architecture professor from Malaysia, knows this well.

As a doctoral student at Stanford University, here on a student visa, she was supposed to fly to Hawaii for a conference nine years ago.

It turns out she was on the infamous “no-fly” list and was arrested, detained, and eventually sent on her way. From Hawaii, she flew home to Malaysia expecting to head to California.

Ah, but this was not to be, as she was put back on the “no-fly” list and her reentry to the U.S. was barred, as her visa was not renewed because she was an alleged terrorist.

Dr. Ibrahim did not take this lightly and brought suit in order to return to the U.S.

She eventually won her lawsuit. Comically, during the court proceedings, government lawyers conceded she was not a threat to national security, while still maintaining she was a terrorist.

I guess there is a separate category of terrorists who “engage in terrorist activities” but who are also not actually threats to our safety!

It turns out, I guess, that we need to be on guard for both the government and the terrorists. If we fail to stand vigilant for freedom, even at home, the creep of secrecy and state ascendancy may diminish our own rights and freedoms.

If this happens, the terrorists will win without detonating a single new bomb.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.

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