lukeapplixcom article nytimescom sent lukeapplixcom mind boggles idea bush administration bothered find serious rationale much less one extraordinary enough justify extraordinary measures much less present public bush administration appears americanstyle justice default explanation government secrecy conceal official wrongdoing administration making case americans dont even right question government secrecy may find history past year epic looting public made possible urgency reacting 911 lukeapplixcom sept 11 legal battle limits civil liberty august 4 2002 new york times article reported written adam liptak neil lewis benjamin weiser fearful aftermath sept 11 attorney general john ashcroft vowed use full might federal government every available statute hunt punish terrorists among us roundup followed attacks conducted wartime urgency uncommon secrecy led detentions 1200 people suspected violating immigration laws material witnesses terrorism fighting enemy governments effort produced law enforcement coups detainees since released deported fewer 200 still held provoked sprawling legal battle waged federal courthouses around country experts say begun redefine delicate balance individual liberties national security main combatants attorney general federal prosecutors one side network public defenders immigration criminal defense lawyers civil libertarians constitutional scholars federal judges governments record far decidedly mixed pushed civil liberties protections limits courts particularly trial level pushed back stopping well short endorsing mr ashcrofts tactics rationales offered justify federal judges however allowed government hold two american citizens without charges military brigs indefinitely incommunicado without road map might even challenge detentions nations history greatest battles reach government power occurred backdrop wartime scholars say current restrictions civil liberties relatively minor historical standards light risks nation faces current struggle centers three sets issues people held simply immigration violations objected new rules requiring cases heard secret leveraged challenges attack call unconstitutional preventive detentions people brought jailed material witnesses thought information terrorist plots argued held give testimony grand jury investigations finally yasser esam hamdi jose padilla two americans labeled enemy combatants government contends direct involvement terrorist groups seeking rights thought fundamental american citizens like lawyers representation chance challenge detentions civilian judge far federal judges newark detroit ordered secret deportation proceedings opened public scrutiny friday federal district judge washington ordered identities detainees made public freedom information act secret arrests judge gladys kessler wrote decision friday concept odious democratic society senior justice department official said detentions lawful effective said hard prove negative cite specific terrorist acts disrupted said department officials believed detentions incapacitated disrupted ongoing terrorist plans two federal judges new york differed sharply whether government may jail material witnesses wait testify grand jury investigations virginia federal judge ordered government allow mr hamdi consult lawyer look federal district court judges cheer exactly independent judiciary said jane e kirtley professor university minnesota former executive director reporters committee freedom press hostile adversarial simply skeptical lowercourt decisions part yet tested appeal reason think appeals courts supreme court prove sympathetic governments tactics arguments federal appeals court richmond va instance reversed decision allow mr hamdi talk lawyer ordered lower court judge consider additional evidence arguments even appeals court seemed torn rejected governments sweeping argument courts role reviewing governments designation american citizen enemy combatant detention issues also carry emotional punch many arabs muslims caught government dragnet cabdrivers construction workers types laborers spent seven months jail cleared terrorism ties deported released last month conference held federal appeals court warren christopher secretary state clinton administration snapped viet dinh assistant attorney general president bush saying administrations refusal identify people detained reminded disappeareds argentina ill never forget going argentina seeing mothers marching streets asking names held government mr christopher said must careful country taking people custody without revealing names mr dinh came united states refugee vietnam recalled familys anguish father taken away 1975 reeducation contrast said detained united states secretly held allowed go press seek lawyers incognito detentions said thing provide road map investigations according justice department 752 1200 people detained since sept 11 held immigration charges officials said recently 81 remained detention court papers indicate two dozen material witnesses detainees held various state federal criminal charges president bush also announced plans try suspected foreign terrorists military tribunals though charges brought yet last month william g young federal judge presiding boston criminal case richard c reid british citizen accused trying detonate bomb shoe transatlantic flight noted establishment tribunals effect diminishing american jury central feature american justice judge young appointed president ronald reagan added profound shift legal institutions lifetime remarkable taken place without engaging broad public interest whatsoever jack goldsmith cass r sunstein professors university chicago law school written bush administrations policies minimal challenge civil liberties especially compared changes times abraham lincoln franklin roosevelt changed say greater sensitivity civil liberties vast increase mistrust government secrecy us says hearings trials ten days last septembers attacks michael j creppy nations chief immigration judge quietly issued sweeping instructions hundreds judges would turn 600 special interest immigration cases cases heard separately cases docket judge creppy wrote courtroom must closed cases visitors family press restriction continued includes confirming denying whether case docket government never formally explained decided visa violators would singled extraordinary process insisted designations could reviewed courts turns cases involved arab muslim men detained fairly haphazard ways example traffic stops tips suspicious neighbors law enforcement officials acknowledged detainees significant information possible terrorists ruling friday washington suggests series legal challenges secrecy resulted striking legal setbacks administration several courts ordered proceedings opened voiced considerable skepticism governments justifications detention policies generally lee gelernt lawyer american civil liberties union said secrecy proceedings exacerbated hardships faced people disappeared sight violations past would resulted incarceration preventive detention said radical departure constitutional traditions certainly shouldnt undertaking solely justice departments sayso malek zeidans detention would unexceptional given rise one legal challenges threatens end secret proceedings mr zeidan 42 syrian citizen overstayed visa 14 years ago lived paterson nj decade years delivered pizzas driven ice cream truck pumped gas immigration naturalization service came around last jan 31 ask former roommate suspected marriage fraud mr zeidan working dunkin donuts expired visa soon cost 40 days custody hearing finally held three weeks detention judge closed courtroom excluding mr zeidans cousin reporters closing proceedings prompted lawsuits federal court mr zeidan two new jersey newspapers march government dropped special interest designation mr zeiden released posting bond case filed dismissed immigration charges considered fall youre one lucky ones lawyer regis fernandez recalls telling mr zeidan given visa violators held long six seven months deported released mr zeidans lawyers believe legal strategy focused openness forced governments hand government somehow linking secrecy guilt mr fernandez said figured public access hearings would see nothing went except multiple adjournments delay spokeswoman judge creppy declined comment ins official spoke condition named said agency acted properly mr zeidans case similar cases said immigration service always detained people without bond linked criminal investigations added agency choice detain visa violator federal bureau investigation sure person involved terrorism consider flip side held two days deported 30 days later found terrorist official said newspapers lawsuit continued already reached supreme court governments papers contain one fullest accounts position secrecy executive power main argument courts role immigration hearings really trials merely administrative hearings closed bennet zurofsky also represented mr zeidan said flabbergasted suggestion trial trial said persons liberty stake person held jail person told live sworn statement submitted several court cases dale l watson executive assistant director counterterrorism counterintelligence fbi outlined reasoning behind government demand total secrecy bits pieces information may appear innocuous isolation fit bigger picture terrorist groups said rationale withholding information sometimes called mosaic theory controversial impossible refute professor kirtley said say certainty true may john w bissell chief judge federal district court newark appointed president reagan ruled newspapers ordered deportation hearings nationwide opened unless government able show need closed hearing casebycase basis ruling followed similar one detroit month though case involved single detainee government appealed court appeals third circuit philadelphia asked block judge bissells order appeal decided court hear arguments september declined number news organizations including new york times filed brief friend court support newspapers government asked united states supreme court stay judge bissells order court relatively unusual move given case purpose blocked judge bissells order suggesting might sympathy governments arguments witnesses rights violated lawyers contend late sept 12 federal agents pulled two nervous indian men mohammed jaweed azmath syed gul mohammed shah amtrak train near fort worth carrying box cutters black hair dye 5000 cash also shaved body hair agents suspicions obvious hijackers used box cutters knives take control aircraft received letters instructing shave excess hair body fbi affidavit dated sept 15 said probable cause believe indian men involved associated responsible sept 11 attacks even though government officials told reporters men detained material witnesses lawyers say held last fall immigration violations distinction important material witness warrant brings automatic appointment governmentpaid lawyer government supply visa violator counsel result authorities able question men repeatedly terrorism without lawyer present current lawyers say like people picked material witnesses indian men held isolation jails new york extended periods 91 days mr azmath received lawyer 57 days mr shah lawyers say wrong keep man jail 57 days never bring magistrate advise rights mr shahs lawyer lawrence k feitell said interview wrong provide attorney threshold wrong depict ins investigation truth fact main inquiry world trade center debacle anthony l ricco lawyer mr azmath said client interrogated often times several hours day multiple interviewers getting rapidfire questions three four different people eventually fbi prosecutors cleared men involvement terrorism pleaded guilty june creditcard fraud scheme awaiting sentencing federal prosecutors said court papers men consented questioning read waived miranda rights interview prosecutors wrote adding man confessed credit card offenses united states attorney manhattan james b comey would comment specific cases said generally governments tactics dont see violation rule regulation law understand defense lawyers happy said know position 911 use every available tool stay within rules play whole field recognize boundaries cover whole field need whatever thats legal investigate disrupt added today believed handful two dozen material witnesses perhaps two still detained process detaining witnesses stirred intense criticism last april judge shira scheindlin federal district court manhattan ruled use law detain people presumed innocent constitution order prevent potential crimes illegitimate use statute judge scheindlin said material witness law applied witnesses held give testimony trials grand jury investigations since 1789 judge scheindlin said congress granted government authority imprison innocent person order guarantee testify grand jury conducting criminal investigation last month chief judge michael b mukasey also federal district court manhattan upheld governments use material witness statute grand jury investigations criticizing judge scheindlins reasoning judge mukasey citing assertion 1807 chief justice john marshall public right every mans evidence held detentions material witnesses investigations proper war captives lawyers allowed us label yasser esam hamdi saudi national captured afghanistan probably american citizen virtue born louisiana case represents core issue kind role nations courts reviewing governments imprisonment someone charged something akin war crime prosecutors back federal district court norfolk va next thursday confront one federal judges shown resistance governments approach someone declared enemy combatant president judicial review ceases judge robert g doumar appointee president reagan twice ruled mr hamdi entitled lawyer ordered government allow frank dunham federal public defender allowed visit without government officials listening devices judge doumar said fair play fundamental justice require said government could cite one case prisoner variety within jurisdiction united states district court held incommunicado indefinitely threejudge panel appeals court stayed judge doumars order saying fully considered governments needs keep mr hamdi incommunicado important executive branchs primacy areas foreign military affairs authority capture take arms america belongs commander chief chief judge j harvie wilkinson 3rd wrote appeals panel even judge wilkinson seemed evince surprise breadth government asserting asked justice departments lawyer saying judiciary right inquire someones stature enemy combatant government relented slightly agreeing provide court sealed declaration criteria judged mr hamdi enemy combatant government argued judges argue standards judge doumar indicated question government closely standards case jose padilla progressed far mr hamdi may present even greater challenge normal judicial procedures mr padilla also known abdullah almuhajir like mr hamdi american citizen imprisoned naval brig declared enemy combatant unlike mr hamdi mr padilla arrested battlefield military united states soil civil law enforcement authorities may 8 chicago detention material witness based suspicions seeking obtain material information build radioactive bomb transferred military custody model fear fear said mr dunham public defender executive branch arrest american citizen declare enemy combatant put outside reach courts keep indefinitely without charging giving access lawyer presenting evidence httpwwwnytimescom20020804national04civihtmlex1029550865ei1enc82350bcf915e44e advertise information advertising email newsletters creative advertising opportunities new york times web please contact onlinesalesnytimescom visit online media kit httpwwwnytimescomadinfo general information nytimescom write helpnytimescom copyright 2002 new york times company httpxentcommailmanlistinfofork mon 5 aug 2002 083425 0400 edt nytimescom article sept 11 legal battle limits civil liberty