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June 26-29, 2003 The Lodge at Vail Vail, Colorado |
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 AN OVERVIEW |
 KEYNOTE Nadine Strossen President, American Civil Liberties Union; Professor, New York Law School. SPEAKERS Heather Mac Donald John M. Olin Fellow, Manhattan Institute; Contributing Editor, City Journal; former Clerk for the Honorable Stephen Reinhardt, U.S. Court of Appeals for the Ninth Circuit. Nadine Strossen Peter Swire Professor Of Law, Moritz College of Law of the Ohio State University; Former Clinton Administration Chief Counselor for Privacy. Ruth Wedgwood Professor of International Law & Diplomacy and Director of the international law program, Nitze School of Advanced International Studies, Johns Hopkins University. FORUM MODERATOR Richard D. Lamm Professor, and Director of the Center for Public Policy and Contemporary Issues, University of Denver; former Governor of Colorado. FACILITATORS Richard D. Lamm Professor, and Director of the Center for Public Policy and Contemporary Issues, University of Denver; former Governor of Colorado. R. Bruce Rich Partner, Weil, Gotshal & Manges; Counsel, Association of American Publishers. Brooks Thomas Chairman, the Vail Valley Institute; former Chairman & CEO, Harper & Row, Publishers, Inc. |
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Overview After the September 11, 2001 attack on the World Trade Center, the President of the United States declared war against terrorism, and the government responded with changes in law and policy to enhance national security. Critics of the response say that much of the new legislation is unnecessary and that some laws and policies violate Constitutionally guaranteed civil liberties. |
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Nadine Strossen Keynote President, American Civil Liberties Union; Professor, New York Law School. I'd like to draw your attention to the key principles that have guided the ACLU's post-9/11 "Safe and Free" campaign. As that name underscores, national security and civil liberties are not inherently at odds with each other. Unfortunately, too many measures that are now touted as countering terrorism are the worst of both worlds: they violate cherished rights with no demonstrable security benefits. The ACLU managed to bring together almost 200 citizens' groups, many of which had never agreed with each other on anything before, to endorse the 10 common principles that have continued to guide us in analyzing all post-9/11 national security measures. These strange bedfellows include Americans for Democratic Action and the American Conservative Union, People for the American Way and the Eagle Forum, Common Cause and Gun Owners of America, the Leadership Conference on Civil Rights and Americans for Tax Reform. We were able to rally these seemingly odd allies quickly because the ACLU always has been staunchly nonpartisan, always working with any individual or group, inside or outside government, on particular issues where we agree, even if we disagree on other issues. Critics of many post-9/11 measures have singled out Attorney General John Ashcroft as the arch-villain behind the widespread civil rights violations following the national crisis. He earned his fair share of the blame, for example, when he essentially denounced the ACLU and its partners as unpatriotic or even traitors, saying that our criticism "aids terrorists and gives ammunition to America's enemies." But I think it is unfair to concentrate criticism on him alone for two reasons. First, this allows the many other government officials who share responsibility for these abuses to escape their fair share of the criticism. Members of Congress did not have to vote for the USA Patriot Act with almost no deliberation or debate. The second reason is that it overlooks history. Throughout history, every time weíve had a national security crisis, whoever has been President has implemented restrictions on rights, restrictions that in hindsight have been widely condemned as unjustified. Indeed, one could plausibly argue that this is consistent with the Executive Branch's Constitutional responsibilities, including the Presidentís role as Commander-in-Chief. But that is precisely why our Constitution constructs a strong system of checks and balances: to counter the predictable efforts by any President to exercise increased power, especially during a crisis. Accordingly, all members of the other branches of government and all members of the public and press must always act on Thomas Jeffersonís insight that "Eternal vigilance is the price of liberty." I would add that eternal vigilance is also the price of security. We must monitor all touted security measures to ensure that they really are well designed to correct actual causes of the 9/11 catastrophe. Let me outline the key principles that the ACLU and our diverse coalition partners have applied to all such measures. First, we apply the same substantive analysis that the Supreme Court has used to assess any measure that limits fundamental freedoms. The government must show that the restriction is actually effective in promoting an important countervailing concern, such as national security, and that it is narrowly tailored to do so, i.e., that no measure that is less restrictive of rights could be as effective in promoting security. The second principle requires that any measure must also comply with the Constitution's procedural or structural guarantees of liberty and democracy, the essential system of checks and balances. In particular, this consists of not allowing the Executive Branch to curtail the vital roles and responsibilities of either the Congress or the courts. Unfortunately many post-9/11 measures have been imposed by Executive branch fiat, circumventing Congress's lawmaking and oversight role. Moreover, many of these measures eviscerate judicial review. The most dramatic instance is the President's unilateral power to brand an American citizen a so-called "enemy combatant." That's not a legal term, and the President hasn't defined it, other than to call one of the individuals in question, Jose Padilla, "a bad guy." Contrary to the implications of the words, "enemy" and "combatant," Padilla was not charged with treason and he was arrested on U.S. soil. I stress these facts to underscore the lack of any limiting principle for the power the Administration claims here. The Administration also claims that once it classifies a U.S. citizen as an "enemy combatant," it may then subject him to "indefinite detention," a euphemism for imprisonment forever without charge, without trial, without access to a lawyer, and without judicial review. The third general principle at stake is that the U.S. government must respect the concept of federalism, often called statesí rights, enshrined in our Constitutional system by permitting state and local governments to protect the rights of their own residents from unwarranted invasions by federal authorities. In violation of this principle, since September 11, we've seen increasing federal efforts to commandeer local law enforcement officials to enforce federal law, including noncriminal immigration regulations, in ways that violate many state and local laws protecting civil liberties and civil rights. The fourth guiding principle is that we must have basic information about what our government is doing in our name. The Executive branch must provide such information not only to the public and the press, but also to Congress so our elected representatives can exercise their critical oversight function on our behalf to ensure that the government is effectively protecting our security as well as respecting our liberty. Unfortunately the present Administration has thrown an unprecedented shroud of secrecy over every aspect of its post-9/11 investigations without any specific showing of need for secrecy in any particular situation. Since September 11, by the government's own admission, it has subjected hundreds of people who havenít been charged with any crime to secret arrests, secret incarcerations and secret hearings which are based on secret evidence and have led to secret deportations. By giving the government sweeping new surveillance powers, the USA Patriot Act reflects the assumption that a prime cause of the 9/11 catastrophe was that the government lacked sufficient power to gather information. In fact, the evidence that has come to light since then has not bolstered that assumption. To the contrary, subsequent analysis has highlighted as a primary cause of the catastrophe the government's failure to effectively analyze and act on the information it already had gathered through its extensive surveillance powers, pre-Patriot Act. Security experts have pinpointed many strategies to prevent future attacks, such as upgrading the government's computer systems, increasing personnel with pertinent language skills, and breaking down the bureaucratic barriers that have obstructed information-sharing among agencies. These are not legal barriers, I stress, but bureaucratic ones. Nonetheless under the Patriot Act, government agents amassed greatly expanded search power, which empowers the government to spy on all of us, including to find out what books we buy or borrow and what websites we surf. History has shown over and over that when government gets away with violating one right of one person or group, then no right is safe for any person or group. Everyone has a direct personal stake in righting this wrong. RETURN TO TOP |
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Heather MacDonald John M. Olin Fellow, Manhattan Institute; Contributing Editor, City Journal; former Clerk for the Honorable Stephen Reinhardt, U.S. Court of Appeals for the Ninth Circuit. I want to argue today that the Patriot Act is a good piece of legislation and that the claims against it are completely wrong. The Patriot Act is 300 pages long. What I propose to do today is give a close reading of three examples of the Bush Administration’s war on terror that have been discussed by previous speakers to show you the rhetorical strategies that are at work again and again between what you think you know and what has actually gone on. Before I do that let me reassert the context of 9/11. It was clearly a war strike, a classic decapitation strike designed to take out the political and military leadership of this country. Had 9/11 been orchestrated by China, by the Soviet Union, by Iran, nobody would be debating this. To say that it is war, however, does not deny the fact that it is an unprecedented war. We have never before experienced the United States being the battleground against foreign enemies who are without uniform and without an identifying country. Given that, the Justice Department, a domestic law enforcement and intelligence agency, has been brought into this war in an unprecedented way. It is trying to sharpen its intelligence capacity because intelligence is the only way we’re going to defeat al Qaeda. Our only hope is to gather intelligence through law enforcement powers, be it surveillance, tips, informants, or infiltration to pre-empt attacks. That is the context. Let me now look at three specific examples of the Bush administration’s war on terrorism that have been much bruited about by the civil liberties lobby: information-sharing in the intelligence community, the detention of illegal aliens who were terror suspects after 9/11, and the so-called sneak and peek warrants. First, information-sharing in the intelligence community. In her keynote address, Nadine Strossen said that it was okay to break down the administrative barriers for information sharing but not the legal ones. Peter Swire contends that there are very few limits on surveillance. Not true. All of the limits on surveillance and all of the judicial review requirements that have ever existed are in place. But let’s look at the legal barriers to information sharing that existed before 9/11. Following the 1978 Foreign Intelligence Surveillance Act, the civil libertarian lobby erected an unnecessary wall between criminal terror investigations and intelligence terror investigations. According to this wall, the criminal side and the intelligence side could have no communication without an elaborate bureaucratic process of vetting approval that took months. The United States General Accounting Office, a highly respected, wholly nonpartisan organization, in early 2001 said the wall was paralyzing the agency. The Bush Administration took down the wall in the Patriot Act. They said the distinction between criminal terror investigations and intelligence terror investigations did not make sense, that we needed every source of information possible and needed every person in government with intelligence to be able to talk to each other. Civil libertarians took this provision to court, the appeals court upheld the provision, and the media and the advocacy groups went nuts. This is how the appeals court decision was portrayed universally in the press: "Government gains wide new surveillance powers to spy on ordinary Americans." Not true. Tearing down the wall did not change the standard for surveilling American citizens. All it did was say that the law enforcement side of the anti-terror warriors and the intelligence side could talk to each other about investigations as they proceed. The second of the Administration’s initiatives in the war on terrorism was the detention of illegal aliens who were terror suspects after 9/11, and at issue is how we regard those detentions in retrospect. Immediately after 9/11, the government was facing an abyss of ignorance. The FBI had almost 100,000 tips on suspected terrorists and decided that if, in the course of following up a tip, the subject was an illegal alien, he would be detained until they could clear him. Illegal aliens from terror-sponsoring countries have a 94 percent absconding rate. So is the government going to say, "Please come back in two months and see an INS judge?" Of course not. As an auxiliary to their policy of detaining illegal aliens who were suspected terrorists, they determined that if in the course of tracking down a tip, they got to the suspect’s apartment and in his apartment found six other illegal aliens, they would hold these individuals as well. It was perfectly appropriate. The FBI also determined that the CIA had to approve the clearances of the illegal aliens who were lawfully being detained and to share the CIA terror watch list. These policies in the aggregate resulted in delays, an average of 80 days of delay for the illegal aliens. The alternative to delaying a suspect’s release was clearing him prematurely only to find out later that he was an al Qaeda member. Nadine Strossen asserted that these actions represent sweeps or racial profiling. We have a little numbers problem: 752 illegal aliens were held for an average of 80 days. Is that a sweep? Is that a war on Muslims? There are about 4 million Muslims and Muslim-Americans living in this country. That is not a sweep. There were secrecy issues, yes. The government did not release their names. The fact is that everybody in detention was allowed to go to the press and publicize their presence in detention if they wanted to. They chose not to. The third example of the Bush administration’s war on terrorism is the so-called sneak and peek warrants. Section 213 of the Patriot Act says that in certain cases a judge may allow delayed notice of a search warrant. Portrayed as one of the most outrageous power grabs of the Patriot Act, Section 213 is not a new power. Judges for a very long time have allowed delayed notice of searches. All section 213 did was codify judge-made case law that has set out the standards for a delay of notice, bringing judicial opinions from the Ninth Circuit and the Second Circuit into a national standard. The ACLU says, "You may never know that you are the subject of a search." That is not what the Patriot Act says. It says "a reasonable delay of notice." It does not say " Never." What is at risk by what I see as a very systematic misinformation campaign about what the government has done? We are currently engaged in a war, a war in which America is the battleground, in which our only real weapon is intelligence. The way the government gets intelligence is through surveillance powers, things like wiretaps, but also from community members that know something. If you have been fed on a steady diet of the idea that what the government has done since 9/11 is just a pretext to abuse Muslim-Americans or to get greater power so a government agency can spy on you, you may think twice about giving that tip, but community participation is absolutely essential. What has been missing in the debate so far is balance. We have heard about the probable risks of government power, the worst case scenarios, the slippery slope. I think it is not the slippery slope that we have to worry about, it is our tendency to overreact, to ratchet up. There have been no Constitutional violations in any of the surveillance. American civil liberties are fully intact. No one is going to spy on you because of the books you read, because that is not what the law allows. We have taken necessary steps to increase America’s security, and let’s hope that they work. RETURN TO TOP |
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Nadine Strossen President, American Civil Liberties Union; Professor, New York Law School. What I have heard is a lot of misinformation. I would recommend that you look at the ACLU website, which has links to the primary sources. First of all is the law itself. You can see what the sneak-and-peek provisions provide, allowing for searches of your library records, your hotel records, financial records without any meaningful judicial oversight. All that the government has to do is to allege that the information might be relevant to an ongoing investigation and then the judge must authorize the surveillance. Look at what the law itself says. Better late than never, there are oversight proceedings that are taking place, and these are the next documents that I would commend to your attention. The Senate and the House Intelligence committees have released recommendations and conclusions from their joint inquiry into the intelligence failures that led to the catastrophe on September 11. When you read them, you will see that they have nothing to do with the alleged problems you have been hearing about--- the wall of secrecy and the legal problems of information sharing--- but rather with steps that have not been taken that could not be cured by any kind of legislation. Another document I would commend to your attention is the report by Senators Grassley, Spector and Lahey, two Republicans and a Democrat, released by the Senate Judiciary committee of an inquiry into problems with the FBI. It is publicly available and was a bipartisan report. Again, you will see it has nothing to do with lack of legal power, lack of search power, but has to do with bureaucratic problems. Let me just read you portions from the Executive Summary to give you a flavor. "The FBI’s failure to analyze and disseminate properly the intelligence in the agency’s possession rendered useless the important work of some of its best field agents. In short, the FBI did not know what it knew. A deep-rooted culture of ignoring problems and discouraging employees from criticizing the FBI contributes to the FBI’s repetition of its past mistakes in the foreign intelligence field. There has been little or no progress at the FBI in addressing this culture." Another document that I think is very important to look at describes a series of questions that have been sent out repeatedly by the House Judiciary committee--- again a bipartisan effort spearheaded by James Sensenbrenner, a Republican from Wisconsin, with the ranking Democrat on that committee, John Conyers--- to the Justice Department. The document asks the Justice Department to detail how it has actually used the new powers it was granted under the Patriot Act and to show by statistics without revealing any classified information how those new powers have been effective in countering terrorism. The answers were finally forthcoming in a 60-page report from the Justice Department that led to oversight hearings in which the House Judiciary committee asked follow-up questions. The conclusion was that the Justice Department did not claim that any of these new powers had been used in any antiterrorism activities subsequent to September 11. What did come to light was that these new powers, including the sneak-and- peek powers, including the power to go into libraries and demand that patrons’ book-borrowing records and web-surfing records be turned over, have been used for ordinary criminal investigations into drug crimes and fraud. I don’t condone any abuse of the law but we have to understand that these powers even according to the Attorney General himself are not in fact being used to prosecute the war on terrorism. Let me read you a conclusion from the ACLU’s analysis of the 60-page Justice Department answers and of the oversight hearings. "The DOJ report and its answers to Congressional inquiries into the concerns of the American people have been woefully inadequate, sometimes deceptive and almost always dismissive. Before considering whether to reauthorize existing authorities in the USA Patriot Act, much less expand anti-terrorism powers, Congress should demand more information from the Administration. They need to show how specific powers have actually been used to prevent or prosecute terrorist acts and make American safer. If the government can show that specific authorities have been necessary, Congress should carefully examine whether additional safeguards could be incorporated with respect to law enforcement authorities to prevent abuses. The DOJ so far has not even come close to satisfying the government’s burden." Do you think it is fair to ask our government to satisfy that burden of proof? If you do think it’s fair, take a look at the answers. I think you will be shocked that there literally has not been one example that has been given by Mr. Ashcroft or others in the Justice Department as to the need for any of these new powers. And I gave you the example of the search powers not having been used. The same thing is true with respect with the new powers of detention and deportation with respect to immigrants. The Justice Department said that its widespread detentions and deportations were all accomplished under its preexisting statutory powers. In that same hearing, John Ashcroft asked the Congress for even more power to gather even more information. The response of Chairman Sensenbrenner was, "If you can’t show us how you have used the new powers under Patriot One, why should we give you more powers under Patriot Two?" In addition the Justice Department itself not being able to show that it has needed these new powers for the war on terrorism, national security, law enforcement and computer experts are also saying that a number of these measures are not only unnecessary but would be counterproductive in terms of national security. Computer scientists themselves have said that the technique of data mining is not an effective technique. One quote from The Association for Computing Machinery said, " The overall surveillance goals of TIA suffer from fundamental flaws that are based in exceedingly complex and intractable issues of human nature, economics and law. As computer scientists and engineers, we have significant doubts that the computer-based TIA program will achieve its stated goal of countering terrorism through prevention." Criticism of the USA Patriot Act is coming not only from civil libertarian critics but also from experts in security, computer information and national security. 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Peter P. Swire Professor Of Law, Moritz College of Law of the Ohio State University; Former Clinton Administration Chief Counselor for Privacy. By the mid-1970s, there was clearly substantiated evidence of widespread lawlessness in surveillance by the FBI and the CIA and other federal agencies. I think this history is important because there is sometimes a temptation to say that everything changed on 9/11, that we have never had these problems before. But we have had them repeatedly and history will show that. I have already alluded to covert government activities in the 1960s: Bobby Kennedy’s wiretaps on Martin Luther King, and J. Edgar Hoover’s blackmail files. The CIA under then-existing law was prohibited from acting in the United States, but it undertook hundreds of domestic operations as well as many overseas. The reaction to these problems was Title III [of the Omnibus Crime Control and Safe Streets Act] of 1968, which said there would only be wiretaps of phone conversations under strict federal standards by state or federal officials. In 1974 the Privacy Act directed that federal agencies had to disclose how they were using personal information. The Freedom of Information Act was expanded in the mid-70s. In 1978, the Foreign Intelligence Surveillance Act [FISA] set up court oversight of wiretaps of agents of foreign powers in the United States. And in 1984 some of these protections were extended to e-mail and other electronic communications in the Electronic Communications Privacy Act. After 9/11, there has been a significant rollback, but not a repeal of the previous surveillance law. There has been an updating of some surveillance powers. FISA has described changes to allow greater actions toward agents of foreign powers. There is now a computer trespass exception that lets FBI agents go into internet service providers and watch the traffic in the ISPs. The White House Working Group on Cyberspace and Privacy Issues that I chaired had proposed in 2000 that if the law enforcement folks broke the law when they were going after your e-mails or your web-surfing activities, there should be suppression of that in court. Suppression exists for phones, but if they do an illegal e-mail wiretap, they can use that in any criminal proceeding. In addition to the Patriot Act, what is less known is some of the theory changes, the ways of thinking about how surveillance should or should not be done. Viet Dinh, who until recently was head of legal policy in the Justice Department, has repeatedly said that the Justice Department will seek powers to do what needs to be done but all Constitutional protections will be followed. When you look at Constitutional law, it turns out that for surveillance in many settings there is not a reasonable expectation of privacy under the Constitution. If you give your doctor a medical record, if you give your internet service provider records of your e-mails, those records are held by that outside third party. They can then consent to give them to the government and there is no Constitutional limit on that. And because of the way our technology works today, a lot of our secrets are not just held at home in a safe. A lot of our secrets are given to the banks, the medical people, to the phone company, the internet people and the rest. So what we have here is very few Constitutional protections and this has been accompanied by a surge in secrecy. Have there been limits on surveillance since 9/11? From all the many requests for surveillance powers, there have been a few. I testified before the Judiciary Committee when the Homeland Security Department was being proposed, and following my recommendations, they did put in a privacy officer. Some of you may have seen the flap recently about the CAPS II program where there would be very extensive use of databases to check the identity of anybody who gets on an airplane. And the Total Information Awareness Program was defunded by Congress in January even after the Bush Administration tried to save it. Where next on the Total Information Awareness Program? It is portrayed by supporters as a research program that will enable government employees to go into lots of different databases in a deidentified way, so searchers won’t know who’s who, but will be able to spot patterns of potential attacks before they happen. And in a world where dangerous things can happen, we have to see the dangerous patterns before they happen. History shows that once this type of system is in place, there will be ever-mounting pressure to expand it. The opportunity for abuse is astounding, whether by renegade federal employees or outside hackers. Build it and it will be abused. Therefore, when you are looking at the next surveillance measure, the first question to test its cost/benefit ratio is, "Does the intrusive measure in fact improve security?" If it doesn’t, there’s no trade-off. The second question to test cost/benefit is, "Is the measure designed to improve security while respecting privacy and other values where possible?" or, "Where is the corresponding safeguard?" The Homeland Security Act as drafted by the Administration had zero safeguards about privacy or civil liberties. The Administration has not put anybody in the Executive Office of the President to work on privacy issues. When you are devising new security measures, you need to build in policies about privacy and civil liberties. We have seen systematic omission of that step. The third question is, Have we built new checks and balances appropriate to new surveillance?" The strict wall between domestic and foreign had been our chief safeguard in FISA against turning surveillance powers against spies into surveillance powers against citizens. If that wall goes away, what do you build back in? So far the answer for the Justice Department has been, "Nothing." We should not let the anti-terrorism measures of today turn into the anti-communist excesses of decades past. What we have today is a government that is enamored of secrecy, and in its antiterrorism measures we have a lack of accountability, no checks and balances and no built-in safeguards. It is our job to try to assure that the excesses of the 1960s "lawless state" don’t happen again. RETURN TO TOP |
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Ruth Wedgwood Edward B. Burling Professor of International Law & Diplomacy and Director of the international law program, Nitze School of Advanced International Studies, Johns Hopkins University. My sense of the difficulty with the USA Patriot Act and other post-9/11 security measures comes from the unanticipated nature of what we are asking the government to do. In an ordinary time, you ask the government to react to things. The premise is that criminal acts will not be so terrible. You can wait to arrest people until you have proof beyond a reasonable doubt. The problem with 9/11 is that because there are weapons of mass destruction, because there seems to be a non-state actor who does not have the same worldly incentives that normal folk do, because he seems interested in the deliberate targeting of civilians, the consequences of waiting are potentially catastrophic. What 9/11 brought home is that this was not ordinary crime. It is not ordinary terrorism. The premises of criminal law are not necessarily adequate. Mary Jo White, the U.S. Attorney in New York who prosecuted the 1993 World Trade Center bombing and the 1998 Embassy bombings, acknowledges that we were thinking of al Qaeda as a criminal problem instead of a world infrastructure: Wahabism and the Saudis and the whole number of factors that led to a hugely attractive movement. The most important part in the Patriot Act is its provision for information sharing between the FBI and the CIA. After the Church hearings [1975], the CIA and FBI could not share information for fear that it would lead to political spying by the CIA or the DIA [Defense Intelligence Agency]. That was the right response for that time and place but I think some of the unintended consequences came back to haunt us. There was no way to marry up what the CIA learned about al Qaeda abroad and what the FBI learned at home, which meant you could not follow al Qaeda’s movements onshore and offshore in anything like real time. The Patriot Act also changed the standard for the intermingling of criminal and intelligence investigations. The Foreign Intelligence Surveillance Act [FISA] gives the President power to monitor espionage agents in the United States. You do not have to show probable cause to believe that a crime is being or has been committed. You go to the FISA court, you get a warrant for a wiretap, and it is reviewed by a judge. Under the old FISA rules, you could only watch a government- or state-sponsored group. And why would you want a FISA wiretap? You may want to in fact anticipate, intercept, disrupt the espionage. In the old days you had to show that the purpose for the investigation was intelligence. Now the criterion has been changed to "a significant purpose." The military commissions that will be used to try terrorists avoid three problems raised by criminal prosecution. One problem is that the kind of evidence you can admit is very limited. No hearsay is admissible. If you don’t give a Miranda warning in a cave, evidence arguably could be not admissible. Secondly, much of the information you would be using to prove a case criminally would be exquisitely sensitive, particularly in wartime. You could not just say, "Judge, I think it’s reasonable here to close the courtroom." There is simply no grounding to do that in the way we have interpreted our peacetime Constitution. And there is the question of security for witnesses and jurors. With a group that is as serious as al Qaeda, it not only impugns the fact-finding process, but is not even fair to jurors to demand they come to court and put their lives on the line. The March 2002 implementing rules for the military commissions go far in making sure that it looks a lot like federal district court. It doesn’t have a jury but has proof beyond a reasonable doubt, burden of proof on the government, right to call your own witnesses, right to cross-examine, and a requirement that the government turn over exculpatory evidence. It looks "ordinary" with two exceptions: for limited intervals if you are presenting intelligence information, you can close the courtroom, and in the most exquisite case you could present the information only to the defendant’s military lawyer. Secondly, any evidence that a reasonable person would think to be probative can be introduced in the pool of evidence for consideration by the fact-finders. That latter standard is the same one that European and international courts use. There is an independent appellate panel that can review and remand the case for reconsideration if it finds serious errors of law. Regarding the treatment of immigrants post 9/11: as the FBI interviewed people, they arrested those whom they found to be in violative immigration status. In the old days, most of these suspects would have been given a ticket summons to appear some other time. The return rate on those summonses is about 3 to 7 percent. The immigrants who seemed to have the most direct connection to the hijackers were transferred to the Brooklyn facility, where there was not sufficient monitoring of their detention. On the dilemma of the speech activities of groups, the problem is that a great many groups have an above-ground and a below-ground presence. There are a lot of Muslim charities that were doing work in the Muslim community and were also funneling money to al Qaeda, so to say that any organization that engages in speech activities is wholly immune from monitoring is probably too strong a rule. To say that advocacy of violence in more than an abstract way might be one indicia of intention to act does fit our understanding of common sense. Another problem is citizen combatants, such as Jose Padilla. Padilla comes back from meeting with Abu Zubaydah in Pakistan, talking about doing a dirty bomb plot. When he gets to O’Hare, the government agents try to see if he would be willing to testify before the grand jury. He was not. He had great intelligence on him but almost nothing that is admissible in federal criminal court, so you either let him go and try to tail him or you can say Padilla was in the region, he was talking to the number three guy in al Qaeda, he was planning an operation that in every real sense is a military operation; therefore, it is fair under the law of armed conflict to say that Padilla enlisted himself in al Qaeda and can be treated as other al Qaeda people are treated. My final, most provocative remarks are an attempt to interpret what John Ashcroft could have meant when he made his remark about giving comfort to the enemy, which clearly should have been rephrased or omitted. But what he could have meant is, "We’re going to get you." It sounds jejune at home, but if you want to have a quick sound bite that will make it to Kandahar and Kabul and Yemen, you have to show your resolve. In Iraq, we are going to have to show we are not going to leave. And there have been so many instances where we did tuck tail and leave when things got hot and heavy. Our politics bewilder diplomats and foreign observers. I think that they can mistake our robust conversation about civil liberties for an unwillingness to actually see the thing through. RETURN TO TOP |
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