With some brief exceptions, the government barred or severely restricted visits to such facilities after 9/11. It also tried to choke off due process and dissent by, among other things, closing immigration hearings to the public and press and discouraging lawful protests.
One reason it has been able to do so is the gradual erosion of judicial oversight. The role of the courts in terrorism cases has declined since the 1995 Oklahoma City bombing, in which 168 people were killed. The Bush administration continued this trend, in treating courts as an encumbrance in its war on terrorism. Attorney General Ashcroft seized for himself the power to monitor confidential attorney-client conversations without judicial oversight. The USA PATRIOT Act allows agents to seize business records, search a home or get information about a person’s web surfing activity with minimal judicial review. It also allows the FBI to monitor telephone or email communications without demonstrating probable cause.
The government seeks to avoid judges and juries entirely in the cases of two U.S. citizens taken into custody since Sept. 11 by declaring them to be “enemy combatants.” Yasser Esam Hamdi, a Saudi national who was captured in Afghanistan, is a U.S. citizen by virtue of having been born in Louisiana. The denial of due process to an American is a development that many lawyers and constitutional scholars find chilling. The case of Abdullah Al Mujahir (also known Jose´ Padilla), an American arrested in Chicago on suspicion of seeking information about building a radioactive bomb, has aroused even greater concerns.
“This is the model we all fear or should fear,” a public defender, Frank Dunham, observed: “The executive branch can arrest an American citizen here and then declare him an enemy combatant and put him outside the reach of the courts. They can keep him indefinitely without charging him or giving him access to a lawyer or presenting any evidence.”
“If a noncitizen like Zacarias Moussaoui can be tried in a regular court of law, surely a United States citizen arrest- ed on American soil can be afforded the same access to jus- tice,” said Romero, executive director of the ACLU. As was demonstrated in the prosecutions of the 1993 World Trade Center bombers and Oklahoma City bomber Timothy McVeigh, he said, “our courts are capable of meting out justice even in the most horrific of circumstances.” TERROR STRIKES HOME: 168 men, women and children died in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City—until 2001, the worst terrorist attack on U.S. soil.
In the case of Yasser Hamdi, the government’s view of access to the courts did not sit well with U.S. District Judge Robert G. Doumar, who is presiding over a request by Hamdi’s father to allow a federal public defender to visit his son. Addressing the government in an open courtroom on Aug. 13, 2002, Judge Doumar said “I tried valiantly to find a case of any kind, in any court, where a lawyer couldn’t meet” with a client. “This case sets