Civil Liberties v. National Security
By Stephen Murdoch
Photographs by Patrice Gilbert
In the war on terrorism, the government, some would argue, has infringed on our civil liberties.
The Romans, Chief Justice William Rehnquist wrote recently, used to say that in time of war the laws are silent. Although the laws have never been silenced entirely in America during wartime, the United States government has often tightened up on civil liberties in the name of national security, and frequently been criticized for doing so after the crisis has passed.
"In any civilized society the most important task is achieving a proper balance between freedom and order," Rehnquist concludes in his book, All the Laws but One: Civil Liberties in Wartime. "In wartime, reason and history both suggest that this balance shifts to some degree in favor of order-in favor of the government’s ability to deal with the conditions that threaten the national well-being."
We are presently in the throes of determining how far a shift toward order and away from freedom the threat of terrorism warrants. David Cole, a Georgetown University law professor who has been critical of many of President Bush’s policies since September 11, says, "The vulnerability that we all feel (and have never felt before) after September 11 does provide grounds for recalibrating the balance between liberty and security." That balance, however, is a difficult one to agree on.
Even though Congress did not see fit to formally declare war on the Taliban, al Qaeda, or terrorism, President Bush clearly believes the country is at war. "The United States is under attack," President Bush was quoted in the New York Times as saying on December 4. "And at war, the president needs to have the capacity to protect the national security interests and the safety of the American people."
In the name of national security, the Bush administration has aggressively exercised its arrest and investigatorial powers, and successfully expanded its ability to gather intelligence in the fight against terrorism. The administration sought and received the passage of the USA Patriot Act, which provided it with updated antiterrorism tools, and soon thereafter made a number of controversial executive decisions in preparation for its war on terrorism.
In this article The Washington Lawyer has asked six D.C. Bar members for their reactions to the military tribunal order, the detentions of roughly 1,200 people in the weeks following September 11, the interviews with 5,000 visa holders, and the new "eavesdropping" policy that allows the Justice Department to monitor certain attorney-inmate communications. This article is the result of interviews with three attorneys who generally support the government’s actions and three who are by and large critical of them.
On November 14 President Bush signed an executive order authorizing the use of military tribunals to try noncitizens suspected of terrorism or harboring terrorists. Of all the executive actions since September 11, the military tribunal decision received the most press attention and was perhaps the most contentious.
Fundamentally, critics and proponents of the military tribunals disagree about the criminal justice system’s ability to adjudicate terrorists during the present crisis. Those who criticize the tribunals believe that the traditional criminal justice system is capable of protecting intelligence sources and is too important to eschew, even as a means to combat terrorism. They direct the same questions they ask of the criminal justice system in times of peace, questions about guarantees and safeguards, to the military tribunals.
Proponents of military tribunals often see the critics’ attitudes as naive and dangerous. They stress that we are at war and that the criminal justice system is not designed as a weapon.
According to George J. Terwilliger
III, a partner at White and Case LLP, "We have a criminal justice
system to basically police antisocial behavior, or deter and incapacitate
You wouldn’t use the police power and the court system to fight
a war. So if we’re fighting a war, it doesn’t make any sense to
use those things."
David B. Rivkin Jr., a partner at Baker & Hostetler LLP, agrees. With the military tribunals "we’re talking about a totally different body of law," he says. "In ordinary circumstances the imperatives are balanced in a way that would much rather allow a lot of guilty people to go free than to convict and punish an innocent person. It’s a little different in wartime when we’ve got a different category of defendants."
But exactly which traditional guarantees and safeguards of the criminal justice system do the military tribunals not include? By the end of January, it was hard to say, because the administration had not yet finished writing the tribunals’ regulations. "They are still in the process of figuring out what it’s going to look like," says Michele A. Roberts, a former public defender and now of counsel at Shea & Gardner. "And so, to be fair, one has to see what it’s going to look like at the end of the day before you are going to throw [darts] at it."
Nevertheless, after David Cole and Kate Martin, director of the Center for National Security Studies, read the executive order, they worried that the tribunals would deprive noncitizens arrested here in the States of too many fundamental due process rights. (They are more comfortable, however, if noncitizens apprehended overseas are tried before tribunals-in Afghanistan, for instance.) "The rights they are proposing to take away with the military tribunals are not some deluxe set of optional protocols that the president can dispense with whenever he decides to," says Cole. "These are the basic minimum procedures that we have always deemed necessary to protect the innocent and identify the guilty."
With the tribunals, Cole worries that the military is the prosecutor, judge, jury, and executioner. Fundamental rights such as independent judicial review are not provided for in the executive order, Cole notes. Moreover, military prosecutors can use classified evidence against the defendant without allowing the defendant a response, and sentencing requires approval of only two-thirds of the commissioners present.
"Theoretically, if you had a 10-member commission and only six were around, someone could get the death penalty with only four out of 10 voting in favor," he says.
Cole argues that terrorists have been successfully tried "in the ordinary course of the criminal process" before. Why is it any different now?
What’s different now, say military tribunal proponents, is that preempting terrorist attacks is vastly more important for the government than it was before September 11. Military tribunals are useful in the government’s new role, and the design of the criminal justice system-dangerously open to the public and cumbersomely slow-would often be at odds with it.
"The criminal justice system and particularly
the discovery mechanisms of the criminal justice system are not
designed to protect sources and methods of information or evidence,
but rather to expose them," says Terwilliger. "And therefore they
are counterintuitive to the necessary intelligence mission to preempt
further terrorist acts
. People who ignore that, I don’t think
they’re bad people, I think they just don’t understand what we’re
Roberts knows that the country is facing a terrific threat, but she finds the secrecy of military tribunals unpalatable. The openness of traditional American judicial proceedings, she argues, is what keeps the government honest. Simply citing national security alone is not a sufficient argument for the tribunals’ secrecy.
"You have to make the case," says Roberts. "You can’t just simply say, ’Well, secrets might be divulged, it’ll jeopardize the confidentiality ’ Those are buzzwords that typically shut people up."
Proponents also say, however, that by signing the executive order President Bush is not restricting himself to the use of tribunals in every case; he is merely, and wisely, giving himself options in the war against terrorism. Rivkin says that title III courts will remain the "default" court for the administration, with "very, very small numbers of people" ending up in military tribunals. Only "unlawful combatants"-people engaged in war against the United States, out of uniform, not bearing arms openly, not complying with laws of war, and not following the chain of command-should end up before military tribunals. Timothy McVeigh, Rivkin notes, or an errant IRA terrorist would not be tried before a military tribunal.
"At the dawn of the 21st century, we are facing a scourge of unlawful combatants, probably in many ways worse than anything since the 14th and 15th century," says Rivkin. These unlawful combatants covet weapons of mass destruction and "are totally unbound by normative and ethical principles that mankind has evolved over a couple thousand years to temper down the horrors of war. From my perspective, a key imperative for all law-abiding states is exterminating those people."
And for Rivkin military tribunals are the appropriate means to execute such people, in part, because they are "truncated." Suspected al Qaeda terrorist Zacarias Moussaoui, after all, is on the "rocket docket" in the Northern District of Virginia, but won’t be tried until October. Rivkin wonders if we really want terrorists sitting in prison for extended periods-months, if not years-for judicial review while compatriots attempt to kidnap Americans to use as leverage for the terrorists’ release. It has happened in Israel, he points out, "and I don’t think that we as a country want to be in that position."
Martin, though, doesn’t mention unlawful combatants after reading the executive order. To her a broad range of people the administration deems terrorists could be brought before the military tribunals. The order, she says, doesn’t define "international terrorist" as linked to al Qaeda or September 11, and this gives the administration too much leeway when deciding whom to bring before a tribunal. It also worries her that the order allows legal alien residents to be held in military custody indefinitely "simply if the president finds that they are suspected terrorists. Again, without any connection to September 11 or to al Qaeda."
Obviously, the lawyers’ opinions range quite dramatically on the potential dangers and utility of military tribunals in combating terrorism. To ultimately judge the tribunals, and not just the executive order establishing them, however, they will have to wait until the regulations are promulgated and the tribunals are put to use.
In the weeks after September 11, the government detained more than 1,200 people on criminal charges, immigration violations, and material witness warrants in a broad investigative sweep. Here the criticisms weren’t so much that the government was taking on new powers, but rather that the government was being overly inclusive, lazy in its investigation, and insensitive to the detainees’ constitutional rights.
To the extent that the government was simply following options previously available to it, the critics had no problem. But they found it troubling to hear reports that detainees were not being told why they were being held. Worse, the courts often weren’t properly informed about the reasons for the detentions, and many of the detainees weren’t provided lawyers.
Without disclosure to the courts and the presence of counsel, Michele Roberts warns, we have no one watching the process. "To the extent that they were rounding people up, holding them indefinitely and not providing counsel, not providing an opportunity to be seen by a judge or magistrate, it’s sickening. That’s completely inconsistent with the way we do business in this country," she says.
Although the lawyers who support the detentions believe the government should stick to what is lawful, they don’t believe the government should shy away from using legal tools available to it. Take, for example, the people detained for immigration violations. Before September 11 many of these people would not have been detained, but that doesn’t mean they couldn’t have been. It was a discretionary decision. Now, after the terrorist attack, law enforcement finds it useful to detain certain people who have overstayed their visas, and there is no legal hurdle preventing it from doing so.
David Rivkin allows that law enforcement
should never detain someone solely on the grounds that it believes
the individual might commit an offense in the future. Nor, obviously,
should the government trump up charges. But if the detainee "screwed
up in some way" that gives law enforcement legal grounds to hold
him, and if law enforcement believes, even if only slightly, "that
he is planning another horrendous crime, for God’s sake, hold him."
Stewart A. Baker, who is a partner at Steptoe & Johnson LLP and an ambivalent supporter of the detentions, asks us to consider what we knew about the terrorists on September 10. Even if law enforcement had known who the 19 hijackers were, he argues, law enforcement would have had to arrest them for immigration violations or criminal matters other than conspiracy to commit terrorist acts-because it would have been very hard to prove that conspiracy without a source on the inside. Months after September 11, law enforcement is in the same position: it believes there are more terrorists in America who could continue to prepare for the next attack undetected. Therefore, the government has to be overly inclusive in its detention decisions simply to prevent further attacks.
"The only reason further acts of terrorism haven’t occurred," says Baker, "is because they’ve got some of the people who were going to commit them locked up. That’s the motivation, and it’s a very strong one, for locking these guys up."
The incapacitation argument is an old one in criminal justice circles, and proving causality between incarceration and reduced crime can be difficult. David Cole argues that the lack of terrorist attacks in the United States since September 11 might or might not have anything to do with the detentions. "You don’t know," he says. "But the general presumption in this country is that you don’t lock somebody up unless you have a demonstrated need to deprive their liberty."
Rather than conduct large-scale detentions, critics argue, the government should hone its investigation techniques. Kate Martin believes the detentions are simply fishing expeditions, rather than effective investigative tools or preventive measures. "I think there is a serious question about whether or not what is being done is simply a dragnet to round up individuals. And if it succeeds in rounding up the truly dangerous individuals, it will simply be by chance," she says.
Martin is also concerned about the secrecy of the detentions. It took pressure from members of Congress and the filing of a Freedom of Information Act request by the Center for National Security Studies to get any information about the detainees or the charges brought against them. "It’s basic to our system that the government doesn’t arrest people in secret," she says.
For Rivkin the detentions are clearly constitutional, but not easy decisions to make. He would urge us, however, to take the historical perspective. During World War II we interned people of Japanese ancestry. "In World War I the postmaster general refused to circulate newspapers who, in his judgment, were writing articles that were defeatist. Pretty blatantly unconstitutional. We clearly have not done anything approaching that level."
In the end, however, even government supporters are aware that the detentions can’t go on forever. "I think we can say with a moral certainty that there are also people locked up who are innocent," says Baker. "I think we need to keep thinking about that, because in the long run the overinclusiveness of our actions is going to breed more resentment, anger, and other problems, so we can’t keep going on forever just keeping people locked up in what amounts to preventive detention."
Five Thousand Interviews
After September 11 the Justice Department began interviewing 5,000 young men across the country to gather intelligence and investigatory leads. The interviewees fell between the ages of 18 and 33 and had come to the United States on student, business, or tourist visas from certain countries since January 1, 2000. On November 9 Attorney General John Ashcroft issued a memorandum to federal prosecutors and antiterrorism forces that would be involved in the questioning. According to the New York Times, the memorandum stated that "these individuals were not selected in order to single out a particular ethnic or religious group. . . . The list was generated by taking a population of individuals and applying to that population a set of generic parameters. These individuals were selected for interviews because they fit the criteria of persons who might have knowledge of foreign-based terrorists."
The interviews of these 5,000 men have critics worried that immigrants are being unfairly singled out and that government relations with Arab communities are being injured. In addition, the interviews have bestirred the specter of profiling and all of the negative connotations that profiling has received in America over recent years.
According to David Cole, "The list of 5,000 is what an enterprising lawyer would come up with if he was told to identify young Arab and Muslim immigrants in this country, but make it look like it’s not based on ethnicity. I think that it is effectively ethnic profiling."
Although "gladdened" that the administration didn’t try to detain the 5,000 visa holders, Michele Roberts believes the interviews were a terrible way to begin an investigation. Consider a rape case, she says, wherein a woman claims to have been raped by a young African American man. If the police were to question every young black man in northwest Washington, "everyone would cry foul." Interviewing the visa holders, she holds, is similarly offensive to the Arab American community, and as a result our government’s relations with it are damaged.
What law enforcement should do, says Roberts, is gather evidence, rather than focus on people simply because they are "brown-skinned." "Do your job," Roberts would say to law enforcement. "Focus on hard facts, hard information, that lead you in a specific direction, as opposed to just rounding people up."
But supporters of the interviews shake their heads in exasperation at the hoopla created by this issue. For David Rivkin the interviews are "probably the most benign" of all the administration’s actions since September 11. It’s not as if investigators came knocking on doors late at night or harassed the young men at work. No, they respectfully asked for information.
Moreover, proponents incredulously
point out that young Arab and Middle Eastern men are the group from
which the terrorists came. It makes sense to begin questioning Arab
and Middle Eastern visa holders with a background similar to the
terrorists. They weren’t old, they weren’t women, and, as Rivkin
jokes, "They were not members of a Swedish bikini team."
If law enforcement wants "to go talk to a bunch of people in the Arab community, [it] makes perfect, logical sense from an objective point of view," says George Terwilliger. "And if that is going to be mischaracterized and irresponsibly criticized as somehow racist, I would think that would be very unfortunate."
To Terwilliger there is an important distinction between profiling all Arabs or Middle Easterners as potential terrorists, which would be wrong, and profiling a terrorist, "in part, as being of Middle Eastern origin." He gives the example of a local bank robbery. If eyewitnesses attest that the robber was a white-bearded man driving a Toyota pickup, "I don’t expect black Americans or Arab Americans to be stopped. I expect white Americans to be stopped. It’s the same sort of circumstance."
Proponents argue that if law enforcement had conducted interviews before September 11 with young men from the Middle East who had committed criminal acts or immigration violations, it would not have prevented the attack from occurring. From all outward appearances, Stewart Baker says, the hijackers on September 11 were acting legally "until the moment they pulled out the box cutters and started to cut people’s throats." Law enforcement does not have the luxury, therefore, of ignoring young Arab and Middle Eastern men who are here legally and who are obeying the rules. "Unfortunately, that’s exactly the profile of the last set of terrorists," he says.
Baker and other government supporters also argue that noncitizens can legitimately be treated differently from citizens. When the police profile African Americans, it is troubling in large part, says Baker, because the interviewees are Americans. Yet the Middle Eastern and Arab interviewees are not citizens. Although profiling is anathema to our American values, the idea that law enforcement shouldn’t be able to profile based on the country a person comes from is a "major extension" of antiprofiling policy.
Baker also believes it’s likely that these foreigners have grown up in a culture with values different from ours. "American citizens are not just constitutionally entitled to more consideration, but they are much more likely to share our values. That doesn’t mean that we can’t produce terrorists. We certainly have. But it’s less likely that we’ll produce terrorists of the kind we saw on September 11."
For the lawyers critical of the interviews, however, this distinction between citizen and noncitizen strikes a nerve. Since September 11, they say, the administration has cynically deduced that it can run roughshod over noncitizens’ rights and few people in America will complain. The military tribunals order applies only to noncitizens, the interviewees were all foreigners, and the most controversial provisions of the antiterrorism bill signed by President Bush in October concerned treatment of noncitizens. Immigrants and noncitizens, they argue, are particularly vulnerable populations that are often scapegoated in times of crisis.
"A very important principle," says
Cole, "is that in balancing liberty and security, we should not
trade off the liberty of a vulnerable minority for the purported
security of the rest of us. The vulnerable minority here is immigrants,
and particularly Arab and Muslim immigrants-groups that have no
voice in the political process."
Kate Martin worries, too, that the government might have an ulterior motive behind the detention and questioning of immigrants from the Middle East and Muslim countries. "What I have come to be increasingly worried about is that it looks like the detentions and the questioning of 5,000 individuals [are] intended to intimidate immigrants and visitors to the United States into leaving," she says.
From a law enforcement perspective, she opines, it is not logical to spend huge resources on questioning immigrants on terrorism and compile lists of their friends’ and relatives’ addresses "for inclusion in some database." Rather it would make more sense for law enforcement to start with what it knows about al Qaeda or the hijackers, "which is not inconsiderable," and work outward.
On the whole, critics believe the interviews are not illegal or unconstitutional, but rather the interviews reflect clumsy investigating that is unlikely to produce results and could easily damage relations with Arab communities, which are important to our fight against terrorism. Given the backgrounds of the terrorists, and the scale of the terrorist threat, government supporters believe the interviews are warranted and view the critics as suffering from a bemuddled political correctness.
On October 31 the Justice Department announced a new policy allowing the government to monitor attorney-inmate communications when, as reported in the New York Times, "reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism." The new policy would apply to very few cases, the administration said, and the inmate and his or her attorney would be told that their communications were being monitored.
Michele Roberts, the former public defender, found the new policy insulting. The government believes that either "defense attorneys are idiots and that we don’t know that we are being used as conduits for information that’s going to be harmful to this country or we are traitors and that we are knowingly being used to transfer information that will be harmful."
It’s not surprising that lawyers have complained about the eavesdropping policy, Stewart Baker says. "It’s like asking union members what they think of the right-to-work laws."
Overcoming his professional bias, Baker believes communications should be monitored if information is leaking out of detention and inmates are meeting solely with their attorneys. "The way to stop that is to say to the inmate and his or her attorney that we’re going to listen to your communications." Notifying the parties means that the conversations won’t yield any incriminating evidence, he says, but the purpose of the regulation is simply to stop leaks, not to further an investigation.
Kate Martin thinks this is an outrageous argument that allows the government to circumvent Fourth Amendment requirements. "If law enforcement has probable cause to believe that someone in detention is conspiring with their lawyer to commit future terrorist acts, they can get a court order authorizing a wiretap tomorrow." The regulation, says Martin, is law enforcement’s way of monitoring communications when it’s unable to meet Fourth Amendment probable-cause standards.
David Rivkin, who supports the Justice Department’s policy, agrees that the government might not have enough evidence in some instances to meet probable-cause requirements, but doesn’t see monitoring those communications as a problem. Rivkin argues that during wartime the government should be setting up special procedures, like this new policy, that are well tailored to defined circumstances and that last only for the period of hostilities. The alternative is to change the way our legal system works permanently, which isn’t something we should do.
"I would much rather have a few instances like this," he says, "where you can engage in a kind of surveillance, with the parties knowing, without probable cause, versus eroding the probable-cause requirement, which is the only alternative."
Critics and proponents also disagree about whether the monitoring infringes on the Sixth Amendment’s right to assistance of counsel and attorney-client confidentiality. Martin believes it does. How can a lawyer effectively assist her client when the inmate knows that all of his communications are being monitored? "It clearly violates the Sixth Amendment right to effective assistance of counsel to have the government sitting at the table between the individual and his lawyer," says Martin.
Proponents counter, however, that there is nothing in the Sixth Amendment that makes lawyer-client confidentiality an absolute. But to David Cole this argument creates a strange inconsistency. It strikes him as odd that the government still needs to have probable cause of criminal activity to listen in on ordinary private communications, while under this new policy the government can impinge upon venerated lawyer-client confidentiality. "And so where you’re talking about a privilege that has ancient roots and is recognized in our law as much more secure than ordinary communications, to say that those kinds of communications can be listened into without probable cause or a warrant, it seems unprecedented," says Cole.
The administration, however, has downplayed the impact of the new regulation by noting how few inmates and lawyers will be affected. During testimony before the Senate Judiciary Committee on November 28, Michael Chertoff, who is head of the Justice Department’s criminal division, downplayed the impact of the new rule: "This regulation currently applies to only 16 of the 158,000 inmates in the federal system."
Not surprisingly, this argument doesn’t sit well with Roberts. The policy is "not less wrong because you’re only doing it to 12 people. If it’s wrong and it’s inconsistent with our Constitution and our principles of justice, then it’s just wrong" no matter how many people it affects, says Roberts.
Past Is Prologue
The truth is that our government has committed some constitutionally questionable acts against its own citizens and noncitizen residents during wartime. Critics of the recent executive decisions, though they care deeply about America’s security, can’t help but view the government’s present actions as crushing acts perpetrated in the name of national security.
Conversely, it would be mendacious to assume that the government’s supporters are unaware of our bleaker historical moments and do not care about civil liberties. Rather, these lawyers are painfully cognizant of the 3,000 people killed on September 11, and the knowledge that there are unapprehended terrorists plotting to harm us. To them President Bush’s actions have been not only logical, aggressive attempts to protect us from further attacks, but also perfectly legal, well-tailored measures that address the threats.
Both government supporters and government watchdogs quote Supreme Court dicta, the same predictable quotes that are seemingly brought up from the cellar and dusted off during every national security crisis. These legal aphorisms sometimes have the feeling of doctrine or scripture, rather than law.
According to Stewart Baker, the Office of Legal Counsel quotes Justice Arthur Goldberg’s famous dictum that "while the Constitution protects against invasions of individual rights, it is not a suicide pact" whenever it seems that doctrine will compel an absurd and dangerous result. And on the opposite side, critics can quote Justice Thurgood Marshall when he said, "History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."
There is no satisfactory jurisprudence of civil liberties during wartime and no time-honored formula for guaranteeing that law enforcement will protect us from our enemies without trampling our freedoms and injuring our beloved institutions. Opposing camps will continue to argue over freedom and security, but a consensus about whether or not President Bush’s administration reacted too harshly to the terrorist threat may only arrive in calmer, safer times.
Attorney Stephen Murdoch wrote about business travel in the February issue.