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2002 Section 3: The aW r on Terror Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2002 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview THE WAR ON TERRORISM

In This Section:

Bush Write OffConss, Takes Reims in War Law Sorr Question the Comtitutonlity of the NsPident's Daision to Fight Temmsm on US. Soil His Way, Wthout Laawk em'Apprnoal David G. Savage 73

A shcrft Defends A nti-Tenrm Steps; Cil L irties Gaoups' A ttacks 'Only A id Tennsts,' Senate Panl Td Dan Eggen 77

Lirty and d Puruitof Temmts Charles Lane 80

Ideas & Tncd: Exactie DecisioM; A Penhantfor Secwy Linda Greenhouse 83

Hzstonialy, Laws Bend in TirE of War, Rehnquist Says; Cxts: Chieflustia COntend Jdigs A ?v Indined to Back the Gozernrrnt in Crises. L inedn's Suspension ofHaleas Capu is Cited David G. Savage 86

Natioad Securty State (AntitersmA ct of 2001, Cad Librties, and GoernrEnt Inustigatzors of Tenr David Cole 88

Security Versus O Lirties Richard A. Posner 92

War on TerrorMakes for Old Tists inJustie Sytem Katharine Q. Seelye 95

Tracs ofTerwr The Detaines; Lawe's A ue Owr Rights of a Ctizen Seized on Enemy Land Katharine Q. Seelye 98

Hding Pattem- Why Congess Must Stop A shcmft's A lien Detentions Jeffrey Rosen 100

A shcrft Is Right to DetainSuspects in Tenor Pal Griffin Bell 104

Jud US. May jailMaterial Vtases; N. Y Ruling Conflias with Decision in Pnor Case in SarE FederalDistrict Steve Fainaru 106

71 Jude Odes US. to Razse Narris of 9/11 Detainees Neil A. Lewis 108

Military Tnbmals: Suaft Judgnrnts in Dire Tirs Joan Biskupic and Richard Willing 111

US. Adds Legal Rights in Tnibuna; NewRuks AIoAllawLeuay onEidence

John Mintz / 116

Haing zeir Day in (a Military) Capt Robert H Bork 119

Justice Cn't Be Done in Saut Why Publicand Pnss Haw a Right to Witness Proeng #Military Tnbuals Edward J. Klaris 122

Supvw Court Blocks L imit on Secrt Hearings Lyle Denniston 127

Ruling Fawn LiritedA ams to 9/11 Data Benjamin Weiser 129

72 Bush Writes Off Congress, Takes Reins in War, Law: Some Question the Constitutionality of the President's Decision to Fight Terrorism on U.S. Soil His Way, Without Lawmakers' Approval.

Los Angeles Times

December 10, 2001

David G. Savage

The message from the Senate Democrats over a series of orders issued by President to the Bush White House last week was: Bush and his attorney general that expand Let's be partners in the war against the government's power to fight terrorism terrorism. at home--from detaining hundreds of foreigners to holding military tribunals to "That's how the founders and our prosecute noncitizens. Constitution intended it. Under our system, none of us has a monopoly on Truman's Action in 1952 Was Overruled authority," Judiciary Committee Chairman On the question of presidential authority, Patrick J. Leahy (D-Vt.) told Atty. Gen. the Republicans' favorite role model is John Ashcroft. Democratic President Franklin D. The American people will have greater Roosevelt. During World War II, confidence if the rules for this new war Roosevelt ordered the detention of are "undertaken by partners in our Japanese Americans on the West Coast country's effort against a common and and a secret military trial for eight Nazi terrible enemy," said Leahy, the saboteurs who had landed on the Atlantic Democrats' point man. beaches. The Bush team responded with a clear but The wartime experience of FDR's polite "No, thank you." successor, however, and the legal precedent it set for a foreign-domestic "The constitutional founders didn't expect delineation of presidential power, is often us to have a war conducted by forgotten. committee," Ashcroft told his former Judiciary Committee colleagues. "The In 1952, with U.S. troops fighting in Constitution vests the president with the Korea, President Harry S. Truman seized extraordinary and sole authority, as control of the nation's steel mills when commander in chief, to lead our nation in unions went on strike and ordered military times of war." troops to keep the mills operating. The president cited his powers as commander The back-and-forth exchange at a in chief, but the Supreme Court ruled he committee hearing Thursday illustrated had gone too far. the growing power struggle playing out in Washington over a war whose boundaries Justice Robert H. Jackson, who had are yet to be drawn. served under FDR, said the president's wartime power is limited on the home No one has questioned the president's front, especially when he acts on his own. authority to send U.S. troops into battle in Truman had not asked for congressional Afghanistan. But controversy has arisen approval before seizing the mills.

73 "We should not use this occasion to counter-terrorism legislation. But on other circumscribe, much less contract, the efforts--including the military trials--the lawful role of the President as administration has said that it can proceed Commander in Chief," Jackson wrote. "I without the approval of Congress. should indulge [him] the widest latitude . . "We're fighting a war," Bush said last . to command the [military], at least when week about the military tribunals. "I need turned against the outside world for the to have that extraordinary option at my security of our society. But when it is fingertips." turned inward, it should have no such indulgence. His command power is not The Senate Democrats say they can see a such an absolute, . . . but is subject to need for this "extraordinary option" but limitations consistent with a constitutional do not see why it should not be Republic whose law and policy-making established-- and restricted--by law. branch is a representative Congress." On Capitol Hill, this dispute is partisan Nevertheless, Bush and his advisors are and personal. determined to fight terrorism on their The Senate Judiciary Committee has been own terms and without interference by the scene of bitter battles between liberals Congress. and conservatives and, as the GOP And so long as the public strongly senator from Missouri, Ashcroft was one supports the president's efforts, Congress of its most aggressively conservative is unlikely to stand in the way, or even members. demand a voice in making policy. Concern When Bush chose him as attorney general, for civil liberties aside, the political risk of all but one of Ashcroft's former appearing to side with the terrorists could Democratic colleagues voted against him. be too high. 17isconsin's Sen. Russell D. Feingold said On Sept. 14, just three days after the he knew Ashcroft personally and did not terrorist attacks, Congress passed a think he would be the firebrand that broadly worded resolution authorizing critics had conjured up. Bush to "use all necessary and appropriate Since Sept. 11, however, Feingold has force" to retaliate and to "prevent any emerged as Ashcroft's sharpest critic in future acts" of international terrorism. the Senate, and during Thursday's hearing, Since then, the government has detained they engaged in several frosty exchanges. more than 1,200 suspects and refused to Ashcroft also has a testy relationship with say who they are and why they are being Leahy. During the Clinton years, Leahy held. New rules allow federal agents to chafed at the moves by Ashcroft and listen in on some jailhouse conversations other conservative Republicans to block between these suspects and their lawyers. the president's nominees to the federal Ashcroft has increased FBI surveillance of courts. This year, the two have switched groups that might have links to terrorists. sides, and Leahy and the Democrats are And the White House has said it may use blocking a series of Bush nominees. military tribunals to prosecute some noncitizens charged with terrorism Many Disapprove of Military Tribunals offenses. In general, the senators have mastered the Grudgingly, Ashcroft negotiated with art of smiling through clenched teeth. But Leahy to win congressional approval of on the historic and controversial questions surrounding the nation's response to the

74 Sept. 11 attacks, Bush administration tribunals, but "now they want to get in the officials have generated animosity by front seat and drive," one administration making clear that they are not interested in official said after the hearing. collaborating with Congress. Dispute Over Power in Wartime Not White House lawyers have been New determined to assert the president's legal This clash also reflects a profound and power. They wrote the Nov. 13 order recurring constitutional dispute over who authorizing military trials and gave it an has the power to set the rules in wartime. unusually broad reach. The Constitution seems to give authority It allows the president to detain and try in to Congress. It says, "Congress shall have military court noncitizens if they have the power to declare war ... and to make "engaged in, aided or abetted, or rules concerning captures on land and conspired to commit" acts of terrorism. water." Congress also has the power "to The order also appeared to close the define and punish . . . offenses against the courthouse door to any appeals. "Military law of nations . . . [and] to constitute tribunals shall have exclusive jurisdiction" tribunals inferior to the United States." over these individuals, and they may not "seek any remedy or maintain any In contrast to these broad rule-making proceeding . . in any court of the United powers of Congress, the president is States." described as the executive who carries out the rules. "The President shall be the More recently, Ashcroft and other commander in chief of the Army and administration officials have said that they Navy," the Constitution says, and "he plan to use military trials for "war crimes" shall take care that the laws be faithfully only, and probably only for terrorists executed." captured abroad. But over two centuries of American During Thursday's hearing, Leahy history, the balance of power has shifted that he had drafted legislation announced toward the president. After World War II use of the military trials. to allow limited and the advent of nuclear weapons, it was Feinstein and Sens. Dianne (D-Calif.) commonly said that the president needed also said Charles E. Schumer (D-N.Y.) the power to go to war instantly, without a bill that they were interested in pressing waiting for congressional approval. would authorize the military trials. And, despite much debate and hand resolution "We should pass an authorizing wringing, Congress has not moved really gives you, as the executive that aggressively to assert its own authority. branch, the authority to do what you need and also states some things like the This fall, when the White House took up standard of proof, like whether it's open the idea of military trials, the president or partially closed [and] the right to and his advisors did not even bother to counsel," Feinstein said. tell members of Congress, let alone ask for their approval or input. But the administration's lawyers said privately that they were not interested in In this instance, the president's help from the Democrats. conservative lawyers, who usually are devoted to the Constitution's "original "They have decided they are not going to meaning," are believers in the evolving stand in the road and block the way" on Constitution. Regardless of what was

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76 Ashcroft Defends Anti-Terrorism Steps; Civil Liberties Groups' Attacks 'Only Aid Terrorists,' Senate Panel Told

The Washington Post

December 7, 2001

Dan Eggen

members were circumspect in Attorney General John D. Ashcroft comparison, confining most questions to resolutely defended the Justice specific policy issues and appearing Department's anti-terrorism tactics to pick a public fight with an yesterday, telling a Senate committee the reticent attorney general leading a popular anti- measures are necessary to prevent future campaign. The most spirited debate attacks and suggesting that criticism of terror on terrorism but on gun them aids the terrorist cause. centered not policy, as several Democratic senators Peppered by congressional skepticism but criticized Ashcroft for preventing the FBI bolstered by overwhelming public support from checking whether some of the in recent weeks, Ashcroft appeared before hundreds of people detained in the post- the Senate Judiciary Committee to Sept. 11 investigation had sought to champion Bush administration strategies purchase guns in the United States. since the Sept. 11 attacks. The methods Committee Chairman Patrick Leahy (D- include the detention of hundreds of J. Vt.), who has complained about a lack of foreign nationals and plans to try alleged Senate input into the anti-terror program, terrorists and their accomplices before said he planned to continue offering military tribunals. congressional guidelines for conducting Ashcroft accused unidentified critics of military tribunals, despite little apparent exaggerating or mischaracterizing support for the idea among Senate and administration policies, saying the Justice House leaders. Department "has sought to prevent "This is not a question of whether you are terrorism with reason, careful balance and for or against terrorists," Leahy said after excruciating attention to detail." the hearing. "Everyone is against "We need honest, reasoned debate, not terrorists. This is about whether we are fear-mongering," Ashcroft said. "To those adequately protecting civil liberties." who scare peace-loving people with Civil liberties advocates were similarly phantoms of lost liberty, my message is unhappy with Ashcroft's suggestions that this: Your tactics only aid terrorists, for skepticism about the they erode our national unity and diminish anti-terror plan is unwarranted while the nation is at war. our resolve. They give ammunition to ... enemies and pause to . . . friends." "It is sad that the attorney general treats honest criticism as Ashcroft's bold language prompted un-American and unpatriotic," said Georgetown protest from interest groups, who, along University law professor Samuel Dash, with some in Congress, have criticized a Democrat who served government tactics as civil liberties as the Senate Watergate Committee's infringements. But Judiciary Committee chief counsel. "These are

77 fear - tactics that chill debate. President decline to cooperate with authorities, Nixon also treated critics as enemies." while offering visas and potential citizenship to those who provide Committee Republicans rallied around information on terrorist networks. their former colleague. Sen. Orrin G. Hatch (Utah), the ranking GOP member The measures have proven popular with who helped Ashcroft win his contentious the public, which, polls show, confirmation last January, praised overwhelringly favors military tribunals Ashcroft's performance since Sept. 11 and and aggressive detention policies. But the decried the "hysterical concerns" of some effort has prompted rising condemnation detractors. from civil liberties groups, Arab American organizations and a vocal minority in the "Certainly the American people are not House and Senate. Yesterday's appearance watching us quibble about whether we before Leahy's panel was the latest in should provide more rights than the a string of public appearances and Constitution requires to the criminals and interviews in which Ashcroft responded terrorists who are devoted to killing our to the criticism. people," Hatch said. "They are interested in making sure that we protect our In his testimony, Ashcroft said the country against terrorist attacks." monitoring of attorney-client communications, which applies to just 16 Ashcroft, a conservative former U.S. federal prisoners, requires the government senator whose appointment as attorney to notify the targets beforehand and general was bitterly opposed by Leahy and prohibits use of the information by most other Senate Democrats, has prosecutors or law enforcement agents emerged as one of the key figures in the except to forestall an inuinent terrorist Bush administration's war on terronsm. attack. He pushed Congress to quickly approve Ashcroft also rejected complaints that legislation in October that expanded the some detainees do not have adequate legal ability of law enforcement ancLintelligence representation or have been prevented agencies to tap phones, monitor Internet from seeking counsel. One man detained traffic and conduct other forms of for nearly two months, Yemeni citizen Ali surveillance in pursuit of terrorists. Maqtari, testified earlier this week that he shcroft has also issued administrative was allowed minimal contact with his rules allowing the monitoring of privileged attorney and family, and was threatened communications between attorneys and by investigators while in custody. detainees who are suspected terrorists; Authorities say he is innocent. But ordered prosecutors to seek interviews Ashcroft, holding a "terrorist manual" with more than 5,000 young, mostly allegedly used by Osama bin Laden's al Middle Eastern men visiting the United Qaeda network, warned that terrorists are States; and has presided over a broad instructed to concoct stories of national effort to detain hundreds of mistreatment and otherwise use the foreign nationals accused of immigration nation's open society to their advantage in violations or minor crimes -- but has planning and staging attacks. "In this refused to identify most of them or reveal manual, al Qaeda terrorists are now told information about many of their cases. how to use America's freedom as a The government also has threatened to weapon against us," Ashcroft said. "We deport or jail illegal immigrants who are at war with an enemy that abuses

78 individual rights as it abuses jetliners. It give new meaning to the term 'the fog of abuses those rights to make weapons of war. to kill Americans." them with which But while several Democratic senators, Ashcroft strongly defended Bush's order including Russell Feingold (Wis.) and allowing military tribunals, though he Edward M. Kennedy (Mass.), expressed referred specific questions about how the misgivings about some the anti-terror courts would be run to Defense Secretary tactics, there were relatively few heated Donald i Rumsfeld, who would oversee exchanges between them and Ashcroft. In the systern. response to his suggestion that criticism In offering a promise of "full and fair might aid terrorists, Feingold asked proceedings," Ashcroft joined Ashcroft for "assurance that you do not administration officials who have sought consider the hearings that we have been to reassure lawmakers that the tribunals holding . .. as . . . somehow aiding the would be used in narrow circumstances terrorists by eroding national unity." involving alleged war criminals. But Ashcroft responded: "I did indicate that Ashcroft also acknowledged that the order we need reasoned discourse as opposed to can be applied to any noncitizen, allows fear mongering. And I think that's fair. proceedings to be held in secret and This is the place where reasoning and provides for indefinite detention of discourse take place." alleged war criminals. Nonetheless, criticism of the plan is overblown, Staff writer Jim McGee contributed to this Ashcroft said, and "charges of kangaroo report. courts and shredding the Constitution

Copyright © 2001 The Washington Post

79 Liberty and the Pursuit of Terrorists

The Washington Post

November 25, 2001

Charles Lane

crackdown seems quite defensible, even If civil libertarians of the left and right moderate. Moreover, if the past is any agree on anything, it is this: In its war guide, the long-term consequence of a against terrorism, the Bush administration U.S. victory in the current war could well is about to trample the Constitution, and be more freedom and tolerance, both here with it, our personal freedoms. The Justice and abroad. Department's plan to eavesdrop on selected conversations between federal There are no certain templates when it detainees and their attorneys is comes to managing the trade-off between "terrifying," says Laura Murphy of the safety and freedom. The Constitution has liberally oriented American Civil Liberties been a consideration for past war Union. President Bush's potentially secret presidents, but not necessarily a more anti-terronsm military tribunals are important one than the perceived gravity Stalinist, says William Safire, the of the threat the country faced. Without conservatively inclined New York Times an act of Congress, President Abraham columnist. Lincoln suspended the right to seek habeas corpus (an ancient judicial writ Sincere as it may be, this criticism is designed to free the wrongly imprisoned) overblown. There's no need, or reason, to during the Civil War, and authorized discuss the threat to liberty posed by the military trials for alleged draft resisters or U.S. government in the same breath as the Southern sympathizers. Lincoln threat posed by terrorism itself. believed he had to go above and beyond the Viewed strictly in legal and constitutional Constitution to preserve the Republic, terms, the Bush approach does raise without which the Constitution itself troubling questions. If the administration would be a dead letter. "Are all the laws makes aggressive use of the new but one to go unexecuted," he asked his wiretapping, detention and intelligence- critics in the dark days of 1861, "and the gathering powers granted to it by government itself to go to pieces, lest that Congress, as Attorney General John one be violated?" Ashcroft has pledged, more people would Twentieth-century likely be prosecuted and punished than presidents embraced Lincoln's would have been the case under pre-Sept. logic. Woodrow Wilson let Socialist 11 laws. And they may be jailed or Party leader Eugene V. Debs be otherwise deprived of their rights with less prosecuted and jailed for publicly due process than before. opposing the World War I draft; Wilson's postmaster general drove antiwar But viewed as the latest chapter in the newspapers out of business by denying long-running American story about how them access to the mails. Following to balance security and liberty in wartime Japan's attack on Pearl Harbor, Franklin a story that dates back to the early days D. Roosevelt ordered the internment of of the republic -- today's anti-terror

80 120,000 people of Japanese ancestry, most Court case, Ex Parte Quirin. In that case, of them U.S. citizens. eight German soldiers were arrested in the United States while Historians still debate the legitimacy of on a covert campaign of sabotage aimed at stores, bridges and these decisions. Lincoln's have generally utilities. To keep them out of civilian been vindicated; Wilson's and FDR's have courts, not. What's striking today, though, is that Roosevelt ordered them charged with violating the laws of war and had nothing like these measures is even them tried in secret contemplated. Bush's response is by a panel of military officers, comparatively well-tailored to a clearly which sentenced them to death, urgent threat. The Justice Department has subject to FDR's approval. The Supreme Court held hundreds of suspects from Muslim consented, saying that constitutional countnes m secret detention and has guarantees did not apply to foreign combatants ordered the questioning of 5,000 other charged with war crimes within the recent arrivals. This has a whiff of ethnic United States. In so profiling about it. But the government has doing, the court carved out a new distinction between military justice for a plausible legal claim -- a visa violation, noncitizens and Lincoln-style usually -- for holding most of the military tribunals detainees. And the president, joined by for U.S. citizens, which have been barred since an 1866 decision known political leaders of all parties and regions, as has gone out of his way to urge tolerance. Ex Parte Milligan. As a case Lincoln's military tribunals tried U.S. study in what happens to due process citizens, sometimes for little more than when the president acts as prosecutor antiwar speech. By contrast, the military and judge as well as commander trials Bush authorized two weeks ago are in chief, Quirin is not reassuring. aimed at non-citizens directly involved in The trial was held in secret not only to protect terrorism, or who may be captured in legitimate intelligence sources and methods, battle. Bush made that decision after the but also to conceal the embarrassing failure of more legalistic pre-Sept. 11 fact that J. Edgar Hoover's approaches to terrorism. The Clinton FBI had failed to uncover the administration emphasized prosecution in plot until one of the Germans came to civilian courts; former national security Washington and offered a detailed adviser Sandy Berger has said that he confession. (FDR commuted the sentences could not accept a 1996 offer by Sudan to of that saboteur and another; hand over Osama bin Laden because FBI they were later freed and sent back to officials believed there wasn't enough Germany after the war by President Harry evidence to indict him in federal court. S. Truman). Supreme Court justices had U.S. juries did eventually convict several serious misgivings, but were swayed by bin Laden underlings, but only after long pressure from the administration and an trials in which delicate government emotional private appeal from Justice information had to be disclosed -- much Felix Frankfurter, who argued that anything of it undoubtedly of use to bin Laden's but a unanimous verdict in favor terrorist planners. of the president would undermine U.S. military morale. The precedent for Bush's secret tribunals for persons who he has "reason to Then again, the saboteurs were fighting for Hitler. If believe" are involved in terrorism -- is an they had been seen sneaking around obscure (until recently) 1942 Supreme a U.S. base in Europe, they would have been shot on the spot. Morally, if

81 not legally, it's hard to understand why communists after a series of bombings; they should have enjoyed extra protection and World War II gave way to the anti- simply because they were sneaking around communist excesses of the 1950s. But within the United States. The last thing Americans today enjoy far greater legal Roosevelt wanted to do in democracy's rights of all kinds, and our society is more life-and-death struggle with Nazism was inclusive than it was in 1863. to give the enemy a perverse incentive to Throughout history, civil libertarians have infiltrate the country and engage in played a vital role in defending the terrorism. The same can be said of bin wrongly accused and making the case for Laden and his clandestine army. The real the smallest feasible governmental lesson of Quirin is that the big stick of a intrusions on constitutional liberty. They military tribunal should be coupled with are playing that honorable role now. Yet it the carrot of amnesty for those terrorists is precisely through such intense political (not including al Qaeda's top leaders) who debate and struggle, and not only through lay down their arms and cooperate with lawsuits, that enduring gains for individual U.S. intelligence. rights have been achieved. If Bush has not Certainly, liberated people all over the gone even further in cracking down on world are glad that Roosevelt waged all- terrorism it is because he is constrained by out war on Nazism and Japanese a legal and political culture far more imperialism, whatever terrible mistakes he favorable toward civil liberties than made on the home front. Among the anything Lincoln, Wilson or FDR could grateful are millions of African Americans have imagined. whose rights expanded in the and women, And don't underestimate the net increase postwar years, in part because they could in freedom abroad that could yet result anti-racist nature of the war cite the from American victory now. (Witness the against Germany. Similarly, Lincoln may dawn of liberty, however tentative, for have traduced habeas corpus, but the women in Kabul.) The United States Union eventually freed the slaves and confronts not only a criminal menace to saved the world's greatest experiment in its people and institutions, but also an self-government. armed campaign to impose a quasi- America's wars -- including World War I, totalitarian political ideology, during which the government's violations masquerading as religion, on a vast region of civil liberty seemed least justifiable, of the earth. Our government needs to either then or now -- are part of a larger proceed with maximal respect for narrative of national growth and fundamental human rights as it goes about integration in which freedom and winning this war. One of the terrorists' individual rights have, over time, goals is to provoke an authoritarian ascended. This has by no means been a overreaction by the United States and smooth process. The Civil War gave way other democracies. But it's way too early to the Ku Klux Klan; World War I segued to worry that they've succeeded. into the Palmer Raids, a sweeping round- Copyright @ 2001 The Washington Post up of suspected anarchists and

82 Ideas & Trends: Executive Decisions; A Penchant for Secrecy

The New York Times

May 5, 2002

Linda Greenhouse

A FEDERAL judge's decision last week Secrecy is at the heart of an escalating that the Justice Department's detention of battle over the identities of hundreds of a Jordanian student was a misuse of the detainees, mostly Muslim men from Arab material witness statute served as a and Asian countries, being held for the reminder that nearly eight months after federal government in New Jersey county Sept. 11, the balance between individual jails. Responding to a suit by the liberty and national security remains American Civil Liberties Union, a state highly unstable. court applied New Jersey's right-to-know law and ordered the names made public. It was never in doubt that the terrorist The secret detentions were "odious to a attacks would alter the balance between democratic society," ruled Judge Arthur these two values. American history is filled N. D'Italia of Superior Court. with examples of how domestic and foreign threats, perceived or -- as today -- The Justice Department not only real, provoked shifts in power away from appealed, but last month issued a the rights of the individual and toward the regulation that bars state and local promise of safety and order. governments from making the names public. The order, which did not involve Even against that background, the Bush Congress, injected complex questions of administration's pursuit of the domestic federal pre-emption and separation of war on terrorism into uncharted and powers ambiguous legal territory is striking. Many into the mix. Ronald K. Chen, associate dean of Rutgers School of Law- of its choices reveal the same instinct for Newark, who is handling the case secrecy and penchant for unilateral for the A.C.L.U., said that by issuing the executive- branch action that the new regulation, the administration administration has displayed on political was "using the continued latitude the public is willing fields of battle unrelated to terrorism. to give in order to push back the frontiers In fact, long after judges have ruled on of what the government can keep secret." challenges to the prolonged detentions, The sense that closed immigration hearings and other the administration is using the war policies that Attorney General John on terrorism to accomplish long- held policy Ashcroft is defending in courts around the goals is not limited to liberals. country, the legacy of this chapter of the "They are taking language off the shelf that's perennial effort to calibrate the balance been ready to go into any vehicle," said Roger between liberty and security may lie in Pilon, vice president for legal affairs whatever verdict the political as well as the at the Cato Institute, the libertarian research legal system renders on the value of group. He was particularly critical transparency in government. of a provision the administration inserted into the U.S.A. Patriot Act that enhanced

83 the government's ability to seize assets authorizes monitoring of conversations through forfeiture. between defense lawyers and their imprisoned The Cato Institute has been critical of but not necessarily convicted clients. The fact that lawyers forfeiture for years, but Mr. Pilon had a will be notified, and privileged information about broader criticism: "Government grows defense strategy will supposedly not be each time there's a crisis," he said, "and forwarded to prosecutors, this is an executive branch that thinks it's has not allayed concerns of the Association of the a law unto itself. Your guard has to be Bar of up. the City of New York, among others. Its committee on professional responsibility ONE surprising development was the issued a critical statement last month, recent indictment of a criminal defense saying, "even in the war on terrorism, the lawyer, Lynne F. Stewart, charged with basic principles on which our system of providing material aid for her client, an justice is balanced ought not to be Egyptian sheik, now serving a life tampered with." sentence for an earlier plot to destroy the Robert Anello, World Trade Center and other New York J. the chairman of the bar association landmarks. Whatever the merits of the committee, said the major flaw was that the unusual charges, the Justice Department's attorney general, rather than a decision to turn its prosecutorial attention magistrate or judge, will select the lawyers to be monitored. to the defense bar fit with a view widely A garden-variety search warrant requires judicial held in some Republican circles that approval, Mr. Anello lawyers are the problem, whether said. "Getting a search warrant is not terribly defending tort plaintiffs, poor people or difficult," he said, adding that terrorists. if the attorney general has enough information to decide to eavesdrop on a In 1996, for example, Congress barred specific lawyer, "that should be enough to Legal Services Corporation lawyers from convince a magistrate." making specific arguments on behalf of ANY attorney welfare recipients, restrictions the general needs the layer of neutrality a judge provides, Supreme Court overturned last year as Mr. Anello said. "You violating the First Amendment. In going need to check someone's predisposition," after the pugnacious Ms. Stewart, who has he said. "Ashcroft's is to root out also represented Weather Underground crime at all costs, but like all well- intentioned radicals, Mafia defendants and other people, he needs to be checked." unpopular clients, the department picked a target unlikely to evoke widespread Ronald D. Rotunda, a law professor at the sympathy. She denies the charges. University of Illinois and a former The indictment left many lawyers troubled consultant to Kenneth W. Starr's but uncertain how to respond in the independent counsel investigation, said absence of much explanation. "I really that while it was "fair to raise questions," hope theyve got some evidence," the administration's critics were too quick Professor Chen said. "Otherwise it's a to assume the worst. "What amazes me is very dangerous precedent for the how careful the government has been," he adversarial process." said, adding that there were plausible legal arguments for the monitoring program. More troubling to some is a Justice Department policy issued last fall that However, Professor Rotunda said the administration had hurt itself by not

84 making its case publicly. "I've heard better from the legal status quo," the two arguments than they're giving," he said. "I professors write, adding: "Under the hope they give better explanations in the order, the executive branch acts as future." lawmaker, law-enforcer and judge." It is the kind of "accumulation of all powers," When criticism has been impossible to they say, that James Madison described in ignore, as happened with the executive the Federalist Papers as "the very order creating military tribunals to try definition of tyranny." suspected terrorists, the administration's response has been to tack slightly and Others reject such dire views. "We've recharacterize the criticism's target as a been reasonably true to our values and work in progress rather than a final constitutional structure," said Douglas W. product. The Pentagon turned down Kmiec, an assistant attorney general in the requests from legal groups to circulate the Reagan administration who is now law regulations for public comment before school dean at the Catholic University of issuing them in late March, four months America. "We have never confronted a after the bare-bones executive order had problem of this magnitude, and we're raised many questions about how the trying to adjust laws and procedures in a tribunals would work responsible way, a responsibly aggressive way. An equally robust defense bar will The regulations addressed some of the push the envelope back in the opposite questions but left many critics unsatisfied. direction. That usually brings us to the Any military tribunal established by right place." executive order rather than by legislation is "flatly unconstitutional," Prof. Neal K. Whether such optimism is warranted -- Katyal of the Georgetown Law Center and past experience suggests it may not and Prof. Laurence H. Tribe of Harvard always be -- will not be evident until the Law School argue in an article in the wavering balance between liberty and current Yale Law Journal. Their target is security, sunlight and shadow, finds its not tribunals as such but rather the new equilibriun. For now, it is enough to "exceptional unilateralism" that the suggest that history will judge this president's order exemplified. challenging period in part by where the balance finally comes to rest. "Our position is that the Constitution sets up a structure whereby the concurrence of Copyright * 2002 The New York Times all three branches is normally needed in Company order to authorize a decisive departure

85 Historically, Laws Bend in Time of War, Rehnquist Says; Courts: Chief Justice Contends Judges Are Inclined to Back the Government in Crises. Lincoln's Suspension of Habeas Corpus Is Cited.

Los Angeles Times

June 15, 2002

David G. Savage

Chief Justice William H Rehnquist, Nonetheless, the chief justice has made it reviewing the history of civil liberties clear he believes it is unrealistic to expect during wartime, said Friday that the courts judges to boldly challenge the are inclined to bend the law in the government's action at a time when a government's favor during a time of threat to the nation's security is real. hostilities. This is not a new topic for Rehnquist. A "One is reminded of the Latin maxim, history buff, he wrote a 1998 book on inter arma silent leges. In time of war, the civil liberties in wartime, titled "All the laws are silent," Rehnquist said in a speech Laws but One." to federal judges meeting in Williamsburg, He recounted the infringements on civil Va. liberties during the Civil War and the two He cited as examples President Lincoln's world wars, and concluded that the suspension of the right to habeas corpus nation's respect for civil liberties has during the Civil War and the Supreme grown steadily. Still, it is true that the Court's willingness to uphold the demands of war have outweighed the internment of Japanese Americans and the commitment to civil liberties, at least secret military trial of eight Nazi saboteurs while the conflict is underway, he wrote. during World War II. On Friday, Rehnquist cited Hawaii's After the Civil War, the Supreme Court imposition of martial law after the attack unanimously overruled the Union's use of on Pearl Harbor. Even though the bars a military trial to condemn several and restaurants reopened shortly Confederate sympathizers in Indiana. And afterward, the civilian courts remained Congress later apologized for the Japanese closed by military order through most of internment, but long after the war was the war, he said. over. Lloyd Duncan, a civilian shipyard worker, "These cases suggest that, while the laws was arrested and tried before a military are surely not silent in time of war, courts court after getting into a fight with two may interpret them differently then than guards at the Pearl Harbor base. Harry in time of peace," Rehnquist said. White, a stockbroker, was also convicted He stressed he was offering "only a in a military court for embezzling funds historical perspective," not a prediction on from a client. how the high court will handle civil Both men filed writs of habeas corpus liberties complaints that arise from the challenging their convictions. The Bush administration's war on terrorism, Supreme Court took up their appeals, and which has not formally been declared. in the case of Duncan vs. Kahanamoku,

86 ruled that Hawaii's military trials for detention in a military brig in Charleston, civilians were unconstitutional. S.C. "The good news for the defendants, and The writ claims that Padilla, a U.S. citizen, perhaps for the people of Hawaii, was that is being held unconstitutionally, and it martial law was illegal there at the time asks a federal judge to grant the writ and these defendants were tried in 1943," release the detainee. Rehnquist said. "The bad news was that Such a writ can be acted upon they did not find out about it until immediately by a judge. If the writ is February 1946, a half year after the end of rejected, lawyers for Padilla could send an the war with Japan." appeal up through the court system. A lawyer for Jose Padilla, the accused Similarly, if the writ is granted, Bush "dirty" bomb plotter, is expected to file a administration lawyers would appeal writ of habeas corpus challenging his immediately.

Copyright © 2002 Los Angeles Times

87 National Security State (Antiterrorism Act of 2001, Civil Liberties, and Government Investigations of Terrorism)

The Nation

December 17, 2001

David Cole

It is already a cliche that the attacks of Congress passed it, the blame would rest September 11 "changed everything." One on Congress. The nuts and bolts of the thing they do seem to have changed is law were worked out in a couple of all- liberals. Harvard law professor Laurence night sessions and approved by large Tribe, a stalwart defender of civil rights majorities the day they were introduced, and civil liberties, has condoned the use of even though members could not possibly military tribunals and the detention of have read the bill before casting their more than 1,200 people, even though not votes. a single detainee has been charged in The Patriot Act imposes guilt by His colleague connection with the attacks. association on mnigrants, rendering Dershowitz has suggested that Alan them deportable for wholly innocent torture may sometimes be justified, as nonviolent associational activity on behalf as it is authorized by a warrant. And long of any organization blacklisted as terrorist George Washington law professor Jeff by the Secretary of State. Any group of has argued that "the real story after Rosen two or more that has used or threatened is that America hasn't yet September 11 to use force can be designated as terrorist. come close to abandoning any immutable This provision in effect resurrects the of its national identity." principles philosophy of McCarthyism, simply I cite these scholars not to single them out substituting "terrorist" for "communist." for criticism--all are important and Perhaps not realizing the pun, the courageous liberal voices--but as Supreme Court has condemned guilt by illustrations of a larger trend. Even liberals association as "alien to the traditions of a these days seem reluctant to criticize the free society and the First Amendment government's response to the new threat itself." Yet it is now the rule for aliens in of terronsm. our free society. But a brief overview of what we've done The Patriot Act also authorizes the so far in the interest of "homeland Attorney General to lock up aliens, security" makes clear that we have already potentially indefinitely, on mere suspicion, abandoned several of our "immutable without any hearing and without any principles" and have already begun to obligation to establish to a court that the repeat the mistakes of the past. detention is necessary to forestall flight or danger to the community. Consider first the USA Patriot Act, an Moreover, most of the more than 1,200 omnibus law of 342 pages enacted under detentions already effected in terrorem threats from Attorney General have not relied upon this authority-, the John Ashcroft, who suggested that if detainees are instead held another terrorist incident occurred before on pretextual criminal charges, as material witnesses and under pre-Patriot Act

88 immigration authority. The government tribunals, defendants have no right to a claims that about ten to fifteen of the public trial, no right to trial by jury, no detained may be linked to Al Qaeda, but right to confront the evidence or to object what about the other 1,185? We can't to illegally obtained evidence and no right know the answer to that question, because to appeal to an independent court. The the Justice Department refuses to disclose military acts as prosecutor, judge, jury and even the most basic information about executioner, and a death sentence can be most of the detainees, such as who they imposed by a two-thirds vote of the are, what they are being held for or where military officers presiding. they're imprisoned. On November 27 We have used military tribunals to try our Ashcroft reluctantly identified about fifty enemies in times of war before. There has people in custody on federal criminal been no declared war here, but perhaps charges but refused to identify more than that can be excused as a technicality. What 500 held on immigration charges, or even cannot be excused is the extension of the to put a number on those held as material tribunals to US residents who have no witnesses or on state charges. Never in connection to Al Qaeda whatsoever but our history has the government engaged who are merely charged with in such a blanket practice of secret "international terrorism," a wholly incarceration. undefined offense, or of harboring Secrecy has become the order of the day. someone so charged. Military tribunals Criminal proceedings are governed by gag have always been limited to the trial of orders--themselves secret--preventing belligerents--those fighting for the enemy, defendants or their lawyers from saying as the Supreme Court ruled in Ex Parte anything to the public about their Milhigan during the Civil War. Bush's predicament. The INS has conducted order, however, allows the President to secret immigration proceedings, closed to dispense with a criminal trial for any the public and even to family members. noncitizen accused of terrorism. The Patriot Act authorizes never- In one setting - attorney-client- disclosed wiretaps and secret searches in communications -- secrecy will no longer criminal investigations without probable be the rule. At the end cause of a crime, the bedrock of October, Ashcroft asserted the authority to listen in constitutional predicate for any search. on such highly privileged discussions And in a federal court of appeals in Miami without a warrant. in November, the government renewed its defense of the use of secret evidence in Finally, we have succumbed to ethnic immigration proceedings, arguing that it profiling. The Justice Department has needs the authority more than ever after instructed law enforcement agents across September 11 to detain aliens by using the country to "interview" more than evidence they cannot confront or rebut. 5,000 immigrants based not on any evidence that they are connected to Al We can look forward to more secrecy still. A major impetus behind George W. Qaeda or the events of September 11 but solely on their age, gender and country Bush's presidential order authorizing the of origin. The list looks suspiciously trial of suspected terrorists in military like what an enterprising lawyer would come tribunals was the desire to avoid the up with if instructed to make a list of constitutional necessity of disclosing immigrant Arab men but to make it look classified evidence to the defendant in an like it wasn't based on ethnicity. ordinary criminal trial. In military

89 After facing some initial, albeit muted, eliminate virtually every procedural check opposition to its first antiterrorism designed to protect the innocent and legislative proposal to Congress, the accurately identify the guilty. Administration has chosen since then to These initiatives have sparked opposition bypass Congress altogether. It has also from unlikely quarters. Police officers in bypassed the public, instead instituting Portland, Oregon, have refused to take radical changes through rule-makings that of the 5,000 go into effect the moment they are part in the interviews immigrant men, citing local laws against published and without notice or racial profiling. Spain has said it will not comment. extradite eight men charged with The Administration has made no case that complicity in the September 11 attacks its pre-existmig authorities were unless we promise not to try them in insufficient. We have successfully tried military tribunals. Even William Safire has senous terronst crimes in open court with called the military tribunals "kangaroo all the protections that customarily apply, courts." And on Capitol Hill, Republican without regard to whether the defendants Orrin Hatch has joined Democrat Patrick were citizens or aliens. Before the Patriot Leahy in calling on Ashcroft to answer Act, we could deport aliens who questions before the Judiciary Committee supported terrorist activity in any way and about his recent executive initiatives. could detain aliens who posed a threat to So why are so many liberals satisfied with national security or posed a risk of flight. the government's response? Why hasn't And we had authority to conduct wiretaps there been a louder outcry about the and searches in foreign intelligence measures adopted? Why hasn't the investigations without probable cause of a Administration been asked to justify its crime, as long as that authority was not newfound authorities on a power-by- used as an end-run around the power basis? For one thing, constitutional rules that govern criminal we are afraid, and in times of fear we crave security investigations. The government has not above all. For another, in the face of an even tried to show that the absence of any attack we naturally and properly seek to of its newfound powers contributed to its stick together, to show a united front. But failure to identify and thwart the in times of fear and crisis we also panic. September 11 attacks. And panic causes us to abandon our Rather, what the Administration has said, pnnciples. time and time again, is that we are "at So have we abandoned any "immutable war." Apparently this statement renders principles," as Jeff Rosen calls then any further argument unnecessary. Well, Thus, political freedom has given way to guilt by Ashcroft tells us that because we are at association. war, "foreign terrorists who commit war Due process has given way to detention on the Attorney General's say- crimes against the United States...are not so. Public scrutiny has given way to secret entitled to and do not deserve the detentions and secret trials. Equal protections of the American protection under law has given way to Constitution." But putting aside whether ethnic profiling. And we're only three we are "at war" without a declaration of months into this. We can't afford to war, the bigger problem is that we can't let liberal vigilance give way to complacency. know whether someone is a "foreign terrorist" until those charges are proven in a fair proceeding. The military tribunals

90 Georgetown legal affairs 'P,'right a 2001 Gale Gu ruP Ifl

91 Security Versus Civil Liberties

The Atlantic Monthly

December 2001

Richard A. Posner

In the wake of the September 11 terrorist of constitutional text and subsequent attacks have come many proposals for judicial interpretation, by a weighing of tightening security, some measures to that competing interests. I'll call them the end have already been taken. Civil public-safety interest and the liberty libertarians are troubled. They fear that interest. Neither, in my view, has priority. concerns about national security will lead They are both important, and their relative to an erosion of civil liberties. They offer importance changes from time to time historical examples of supposed and from situation to situation. The safer overreactions to threats to national the nation feels, the more weight judges security. They treat our existing civil will be willing to give to the liberty liberties-freedom of the press, protections interest. The greater the threat that an of privacy and of the rights of criminal activity poses to the nation's safety, the suspects, and the rest-as sacrosanct, stronger will the grounds seem for seeking insisting that the battle against to repress that activity even at some cost international terrorism accommodate itself to liberty. This fluid approach is only to them. common sense. Supreme Court Justice Robert Jackson gave it vivid expression I consider this a profoundly mistaken many years ago when he said, in approach to the question of balancing dissenting from a free-speech decision he liberty and security. The basic mistake is thought doctrinaire, that the Bill of Rights the prioritizing of liberty. It is a mistake should not be made into about law and a mistake about history. Let a suicide pact. It was not intended to be such, and the me begin with law. What we take to be present contours of the rights that it our civil liberties-for example, immunity confers, having been shaped far more by from arrest except upon probable cause to judicial interpretation than believe we've committed a crime, and by the literal text (which doesn't from prosecution for violating a criminal define such critical terms as "due statute enacted after we committed the act process of law" and "unreasonable" arrests and searches), that violates it-were made legal rights by are alterable in the Constitution and other enactments. response to changing threats to The other enactments can be changed national security. relatively easily, by amendatory legislation. If it is true, therefore, as it appears to be at Amending the Constitution is much more this writing, that the events of September difficult. In recognition of this the 11 have revealed the United States to be Framers left most of the constitutional in much greater jeopardy from provisions that confer rights pretty vague. international terrorism than had The courts have made them definite. previously been believed-have revealed it Concretely, the scope of these rights has to be threatened by a diffuse, shadowy been determined, through an interaction enemy that must be fought with police measures as well as military force-it stands

92 to reason that our civil liberties will be clear that only Congress can suspend this curtailed. They should be curtailed, to the right. (Another of Lincoln's wartime extent that the benefits in greater security measures, the Emancipation outweigh the costs in reduced liberty. All Proclamation, may also have been that can reasonably be asked of the unconstitutional.) But Lincoln would have responsible legislative and judicial officials been wrong to cancel the 1864 is that they weigh the costs as carefully as presidential election, as some urged: by the benefits. November of 1864 the North was close to victory, and canceling the election would It will be argued that the lesson of history have created a more dangerous precedent is that officials habitually exaggerate than the wartime suspension of habeas dangers to the nation's security. But the corpus. This last example shows that civil lesson of history is the opposite. It is liberties remain part of the balance even in because officials have repeatedly and the most dangerous of times, and even disastrously underestimated these dangers though their relative weight must then be that our history is as violent as it is. less. Consider such underestimated dangers as that of secession, which led to the Civil Lincoln's unconstitutional acts during the War; of a Japanese attack on the United Civil War show that even legality must States, which led to the disaster at Pearl sometimes be sacrificed for other values. Harbor, of Soviet espionage in the 1940s, We are a nation under law, but first we are which accelerated the Soviet Union's a nation. I want to emphasize something acquisition of nuclear weapons and else, however: the malleability of law, its emboldened Stalin to encourage North pragmatic rather than dogmatic character. Korea's invasion of South Korea; of the The law is not absolute, and the slogan installation of Soviet missiles in Cuba, "Fiat iustitia rat caelum" ("Let justice be which precipitated the Cuban missile done though the heavens fall") is crisis; of political assassinations and dangerous nonsense. The law is a human outbreaks of urban violence in the 1960s; creation rather than a divine gift, a tool of of the Tet Offensive of 1968; of the government rather than a mandarin Iranian revolution of 1979 and the mystery. It is an instrument for promoting subsequent taking of American diplomats social welfare, and as the conditions as hostages; and, for that matter, of the essential to that welfare change, so must it events of September 11. change. It is true that when we are surprised and Civil libertarians today are missing hurt, we tend to overreact-but only with something else-the opportunity to the benefit of hindsight can a reaction be challenge other public-safety concerns separated into its proper and excess layers. that impair civil liberties. I have In hindsight we know that interning particularly in mind the war on drugs. The Japanese-Americans did not shorten sale of illegal drugs is a "victimless" crime World War II. But was this known at the in the special but important sense that it is time? If not, shouldn't the Army have a consensual activity. Usually there is no erred on the side of caution, as it did? complaining witness, so in order to bring Even today we cannot say with any the criminals to justice the police have to assurance that Abraham Lincoln was rely heavily on paid informants (often wrong to suspend habeas corpus during highly paid and often highly unsavory, the Civil War, as he did on several undercover agents, wiretaps and other occasions, even though the Constitution is forms of electronic surveillance, elaborate

93 sting operations, the infiltration of suspect the investigation and apprehension of organizations, random searches, the drug dealers to the investigation and monitoring of airports and highways, the apprehension of international terrorists. "profiling" of likely suspects on the basis By doing so we may be able to minimize of ethnic or racial identity or national the net decrease in our civil liberties that origin, compulsory drug tests, and other the events of September 11 have made intrusive methods that put pressure on inevitable. civil liberties. The war on drugs has been a [Richard A. Posner is a judge on the Court big flop; moreover, in light of what of Appeals for the Seventh Circuit.] September 11 has taught us about the gravity of the terrorist threat to the United States, it becomes hard to take entirely Copyright © 2001 Atlantic Monthly seriously the threat to the nation that drug Company use is said to pose. Perhaps it is time to redirect law-enforcement resources from

94 War on Terror Makes for Odd Twists in Justice System

The New York Times

June 23, 2002

Katharine Q. Seelye

In one of the strange turns in the war on The government moved Mr. Hamdi from terrorism, two Americans are being held Cuba to the mainland because he was in military brigs without access to lawyers, American, meaning that he had more while two foreigners accused of terrorist rights than other Guantanamo detainees. activities are being tried in federal court But now it argues that his citizenship is with the full range of protections usually irrelevant, that he is an enemy combatant accorded to Americans. and does not deserve the legal protections most Americans enjoy. The government is This patchwork approach has revealed a also blocking him from speaking with his flexibility in the justice system but also court-appointed lawyer. what critics call an overly broad assertion of presidential authority. Government officials said Mr. Hamdi has not been charged because he is being held The government contends it can detain for the protection of the country, not for people until the hostilities are over -- prosecution. whenever that is -- without charging them or giving them access to lawyers. The Mr. Padilla was arrested on May 8 and has dispute is likely to end up before the been in a brig near Charleston, S.C., since Supreme Court. June 10. He was taken into custody in connection with what officials said was a The Americans in prison are Yasser Esam plot to build and detonate a "dirty bomb." Hamdi, born in Louisiana and raised in Mr. Padilla has also not been charged and Saudi Arabia, and Jose Padilla, born in has not had access to a lawyer. Brooklyn and raised in Chicago. A third American, John Walker Lindh, born in the The two foreigners jailed on terronsm District of Columbia and raised in charges are Zacarias Moussaoui, a French California, is facing a trial. citizen, and Richard C. Reid, a Briton. Mr. Moussaoui, accused Mr. Lindh has a high-powered legal team as the "20th hijacker," has had hearings in federal defending him in federal court in court in Alexandria, Va., where he is representing Alexandria, Va., against 10 counts, including conspiring to kill Americans and himself. Mr. Reid's case is pending in supporting terronst organizations. federal court in Boston. Mr. Hamdi, picked up on the battlefield in Some legal experts say the variety of Afghanistan in November, was sent to approaches underscores the judicial Guantanamo Bay in Cuba then moved to system's elasticity. "There is a learning a brig in Norfolk, Va., on April 22 when process," said Eugene R. Fidell, president the authorities confirmed he had been of the National Institute of Military born in America. He has not been Justice. "The fact is, there seems to be an charged. unusual range of options available."

95 David Cole, a Georgetown University law circumstances and feel very comfortable professor, said that the evidence, or lack about the legality of what we're doing," of it, might explain the inconsistencies in one senior official said. they can win a treatment. "Where they feel He emphasized that the purpose of criminal case, they'll go the criminal detaining Mr. Hamdi and Mr. Padilla was Cole said. "Where they route," Professor not to prosecute them but to keep them feel they can't, where they don't have the from rejoining any anti-American forces. evidence," officials put the prisoner in a military brig, he said. "This is not a punitive action, it's self- protection," he said. He also suggested that the Lindh case was demonstrating to the government that In papers filed on Wednesday in the public trials for some of these suspects Hamdi case in the United States Court of can be tricky. For example, the Appeals for the Fourth Circuit in government has suggested that Mr. Richmond, Va., the government argued Hamdi, as well as some prisoners in that anyone detained in connection with Guantanamo, may have information that the war on terrorism was an enemy clears Mr. Lindh. The judge in Mr. Lindh's combatant and had no right to a lawyer. case, T. S. Ellis 1II, has told the defense Mr. Hamdi's lawyer, Frank W. Dunham lawyers that they can talk to Mr. Hamdi if Jr., argued that the government presented Mr. Harmdi's lawyer agrees, but the no evidence that Mr. Hamdi was an government is not agreeing that Mr. enemy combatant. Hamdi even has a lawyer. The executive branch, Mr. Dunham said, Judge Ellis said denying Mr. Lindh access "does not have the authority to detain an to a witness who could clear him would American citizen incommunicado and to violate his rights. He also told government unilaterally withdraw from the courts the prosecutors that at some point, they power to inquire into the propriety of his would have to decide whether to go ahead detention." and prosecute Mr. Lindh, which would mean giving him access to Mr. Hamdi, or The government's arguments in the whether the need to keep Mr. Hamdi Hamdi case startled legal experts and isolated was so overwhelming that they stirred critics who had quieted down after would drop their case against Mr. Lindh. a confrontation about military tribunals. Others say the multiple approaches have "The route they have created in this ad exposed an overreaching of presidential hoc way is devoid of any constraint on the authority. Michael Posner, executive president's power," Mr. Cole said. "The director of the Lawyers Committee for notion that he can pick people up off the Human Rights, said that the government's street, label them and lock them up for stance in the Hamdi case showed "that the rest of their lives without a hearing is a Americans now have less protection remarkable one." under the law than several of the It also prompted some, like Douglas W. noncitizens accused of taking action Kmiec, dean of the law school at Catholic against the U.S." University and a professor of Administration officials said their constitutional law, to suggest that perhaps treatment of the Americans in captivity President Bush should amend the Nov. 13 was proper. "We've been very careful order that set up the military tribunals. about each one of these guys under the

96 President Bush issued the order before Senior administration officials, however, the government knew it would find said no amendment of the order was Americans suspected of involvement with being considered. foreign terrorists; the order specifically No tribunals have been held, and do not exempted Americans from a tribunal's jurisdiction. seem imminent, in part, officials said, because the government is trying to get That exemption was a concession to make information from the prisoners, not the tribunals politically palatable to critics punish then in Congress. "We're not in the criminal justice business, But Mr. Kmiec said that including we're in the national defense business," Americans in the tribunal system would said a top administration official. "First give the prisoners a legal forum and would things first." deflect criticism that the United States was Mr. Dunham, undermining a basic tenet of its judicial Mr. Hamdi's lawyer, system. remains concerned about what he calls the "uneven" treatment. He said that Mr. "Everyone is legitimately concerned when Lindh seemed to be better off than his a U.S. citizen can be detained without client because at least Mr. Lindh was charge and without access to counsel," accused of something and could defend Mr. Kmiec said. "It perplexes federal himself. judges." "Our client hasn't been charged with any Mr. Kmiec, who led the office of legal crime, and the government says that since counsel in the Reagan administration and they haven't charged him with a crime, the first Bush administration, said he had they can hold him forever," he said. "It broached the idea with current seems to be a little strange. A guy is worse administration officials. off if he's not charged with a crime." "They know there is an anomaly in the Copyright @ 2002 The New York Times process about how different people are Company. being treated, and they are worried there will be more," he said.

97 Traces of Tenor The Detainees; Lawyers Argue Over Rights of a Citizen Seized on Enemy Land

The New York Times

June 26, 2002

Katharine Q. Seelye

American citizen, and Judge Wilkinson An appellate judge hearing one of the was quick to interrupt. most closely watched cases pitting civil liberties against national security seemed Was he suggesting that the government favorable today toward the government could not detain a citizen "who has taken argument that an American citizen can be up arms against America?" Judge held indefinitely without being charged Wilkinson asked in a voice that suggested with anything or represented by a lawyer. he could not believe his ears. The case involves Yaser Esam Hamdi, 21, Mr. Kamens argued that there was no who was born in Louisiana, reared in evidence that Mr. Hamdi was actually an Saudi Arabia and captured on the enemy combatant, but the judge came battlefield in Afghanistan. Mr. Hamdi was back at him. sent to Guantanamo Bay, Cuba, until Suppose an inquiry established that Mr. officials discovered he had been born in Hamdi was an enemy combatant and the United States, and then moved him to fought on the side of the Taliban and Al the naval brig in Norfolk, Va. He has been Qaeda against American forces, Judge held there since April 5, not charged with Wilkinson said. "What is unconstitutional any crime or allowed to see a lawyer, about the detention of that individual and although a district court has appointed a trying to get intelligence from that public defender to represent him. individual over a period of time, during In oral arguments here before the United the course of hostilities, that would save States Court of Appeals for the Fourth American lives?" Circuit, J. Harvie Wilkinson III, the chief The judge added that he knew of no judge, appeared incredulous today at Mr. previous cases that said it was wrong to Hamdi's lawyer's assertion that his client -- interrogate an enemy combatant who had captured during battle and designated an been captured on the battlefield. enemy combatant -- had any constitutional rights. "This has been done in every war that I know of," he said. "What is unconstitutional about the government detaining that person and The sharp exchange seemed a preview of getting from that individual all the an argument likely to reach the Supreme intelligence that might later save American Court in an escalating battle between the lives?" Judge Wilkinson asked Geremy rights of American citizens and the power Kamens, an assistant federal public of the president to detain and interrogate defender helping to represent Mr. Hamdi. enemy combatants while hostilities are continuing. Mr. Kamens said the Constitution prohibited the indefinite detention of an

98 Judge Wilkinson and two colleagues were "How in the world could the district court hearing an appeal by the government of a have proceeded to decide all these lower court ruling that ordered the Navy questions and potentially pre-empt them to give Mr. Hamdi unfettered access to by appointing counsel without even giving the public defender. The hearing was the government a chance to be heard?" he conducted by teleconference, because the asked. "That's what I don't understand." judges were dispersed. It was piped Mr. Kamens said the district court's through speakers into the federal appointment of a lawyer had nothing to courthouse here, where reporters listened do with the legality of Mr. Hamdi's in. detention, but Judge Wilkinson replied The Fourth Circuit, one of the most that the appointment of counsel was conservative appellate courts in the significant. country, could issue its opinion anytime. "If counsel is appointed," he said, "we are The government argued in papers filed deciding, for starters, that someone who last week that the lower court judge, may well be an enemy combatant has a Robert G. Doumar of Federal District right to counsel, No. 1. That's a major Court, was trying to usurp the president's issue. authority in a time of war and had acted "I don't know, for example, how counsel improperly in providing Mr. Hamdi a can be separated from access or indeed lawyer before allowing the government to from the other rights in the criminal make its case. justice system. I don't know how you can The government's case was argued today appoint counsel without throwing into by Paul Clement, deputy solicitor general, jeopardy the government's intelligence- who said the courts should not second- gathering operation." guess the president's decision to hold Mr. The government said, and Judge Hamdi as an enemy combatant. The Wilkinson agreed, that intelligence- judiciary "can answer legal questions," Mr. gathering could be disrupted because the Cement said, but further interference introduction of a third party could break would not be "terribly helpful." the atmosphere of trust that the Judge Wilkinson, who asked to see the government was trying to establish with president's determination of Mr. Hamdi's the prisoner, particularly if the lawyer status, which has not been made public, urged the prisoner to assert his rights said the case posed serious separation-of- against compelled self-incrimination. powers issues. But he was far more Judge Wilkinson said the district judge's emphatic in his questioning of and appointment of counsel had already declarations to the public defender. "decided four or five mega issues without Today's vigorous argument "underscores even giving the other side the chance to one of my basic problems with this case," present its case." Judge Wilkinson said. which is that it Copyright @ 2002 The New York Times poses a number of difficult questions and the lower court appears not to have given them proper attention.

99 Holding Pattern; Why Congress Must Stop Ashcroft's Alien Detentions

The New Republic

December 10, 2001

Jeffrey Rosen

It's a role Congress has been reluctant to Of all the new security measures adopted play in the past. But Congress may be the by the Bush administration since only hope September 11, the most draconian involve we've got. the detention and interrogation of aliens. The most sweeping of the laws and In his dragnet effort to uncover evidence regulations passed in the wake of of terrorism, Attorney General John September 11 are those that authorize the Ashcroft has authorized the detention of indefinite detention of aliens whom some 1,100 noncitizens. Some have been Ashcroft designates as suspected held for months and--thanks to recently terrorists. Most significantly, on passed legislation--may be held November 14, the Immigration and indefinitely. Critics call the Ashcroft Naturalization Service adopted a detentions unconstitutional. "We have regulation allowing the detention of aliens violated core constitutional principles," whom the government wants to deport says David Cole of Georgetown but no other country will admit. If the University Law Center, pointing to new attorney general, in consultation with the laws and regulations that allow the State Department, believes that their cases government to detain aliens without bail; raise significant "national security or deport or exclude them because of their terrorism concerns," the aliens can be political associations; and eavesdrop on locked up indefinitely. their conversations with their attorneys. The regulation is an attempt to respond to Some of these measures may indeed the Zadvydas case, decided by the violate principles of procedural fairness, Supreme Court last June. Before then, the free speech, and privacy. But they don't Court had repeatedly held that Congress violate the Constitution. Over the last 50 has virtually unlimited power to deport, years the Supreme Court has imposed few exclude, or detain immigrants at the constitutional restraints on the ability of border. In Zadvydas, however, Justice Congress and the president to detain, Stephen Breyer, writing for the 5-4 exclude, and deport aliens in ways that majority, held that in the 1996 would be grossly unconstitutional if immigration reform act, Congress hadn't applied to citizens. As a result, Ashcroft intended to authorize the indefinite has virtually unlimited legal discretion in detention of aliens who couldn't be his treatment of aliens. But that doesn't deported because their home countries mean he shouldn't be stopped; only that wouldn't allow them back. (In fact, judges aren't the people to stop him. Congress probably had intended to Although it may be difficult in the current authorize the detentions; Breyer stretched environment, our elected representatives the language of the law to avoid a in Congress are the only officials constitutional conflict.) But even though authorized to determine the fate and Breyer intervened on behalf of aliens' defend the interests of mistreated aliens. rights, his opinion included an important

100 loophole: It stressed that Congress and deferential to Congress in cases involving the president might have more leeway to the deportation of unpopular aliens. detain aliens indefinitely in cases involving In the 1950s, for example, Congress "terrorism or other special circumstances passed the McCarran-Walter Act, which where special arguments might be made allowed the government to exclude and for forms of preventative detention and deport aliens who advocated communism. for heightened deference to the judgments The Supreme Court upheld the attorney of the political branches with respect to general's right to deport aliens who were matters of national security." members of the Communist Party, The new INS regulations exploit this suggesting that Congress has the right to loophole for all it's worth. They allow treat aliens in ways that would violate the John Ashcroft and Colin Powell First Amendment if applied to citizens. unilaterally to detain any deportable alien The Court held that an alien couldn't use whose release would have "serious his lack of knowledge about the adverse foreign policy consequences," in Communist Partys goals as a defense. It the government's opinion. And although also held that aliens could be detained the regulations give the government without bail while the government tremendous discretion to define a foreign decided what to do with them. These cold policy crisis, it's hard to imagine that the war precedents may doom any legal Supreme Court would raise constitutional challenges to a regulation issued by the objections. This is particularly true in light INS in October allowing the Justice of the USA Patriot Act, passed in Department to lock up aliens while October, in which Congress explicitly appealing an immigration judge's decision authorized the attorney general to detain to release them on bail. "suspected terrorists" indefinitely in The Patriot Act also authorizes Congress special circumstances. This time, there's to exclude from the United States any no ambiguity about congressional intent. aliens who "endorse or espouse terrorist Another element of the USA Patriot Act activity" or who "persuade others to allows the deportation not only of support terrorist activity or a terronst convicted terrorists, but of any alien who organization." In 1953 the Supreme Court provides financial support to a "terrorist upheld similar exclusions. In a famous organization," broadly defined as a group case, a Romanian alien named Mezei, who of people who threaten to use weapons. "I had lived in the United States for 25 years, would guess that somebody who writes a went home to visit his dying mother, check to the organizations that raise when he tried to return, he was detained money for the IRA might be brought on Ellis Island for almost two years on within this," says Peter Schuck of Yale grounds that his admission would be Law School. "That's troubling, but it's "prejudicial to the public interest." The hard to see how it could be more precisely Supreme Court held that he wasn't even defined." Schuck suggests that judges entitled to judicial review of the decision might interpret the law to say that the IRA not to release him on bail. Harry Kalven, contributor can't be convicted as a the great First Amendment scholar at the terrorist unless he knows more about how University of Chicago, summed up the the IRA operates than it takes to write a Court's attitude toward exclusion and check. But once again, it's a mistake to deportation of suspected Communists this rely on the courts: In the past, the way "The rule was that there were Supreme Court has been extremely absolutely no limits on the power of

101 Congress to exclude aliens. Neither client prvilege, if the government has inhibitions against gross racial probable cause to believe that a client is discrimination, against interference with using a lawyer to advance an illegal freedom of speech and association, scheme, it can get a court order or even against breaking up the family, nor set up a sting operation. Moreover, as restraints dictated by notions of basic Akhil Reed Amar of Yale Law School procedural fairness could stay the hand of suggests, there are less-intrusive ways of the government." ensuring that the most dangerous suspects don't use their lawyers to further terrorist All this would be easier to swallow if the schemes: Lawyer-client conversations government had to prove that the aliens it could be videotaped and reviewed by was indefinitely locking up really did impartial judges, for example, rather than threaten national security. Unfortunately, by partisan government lawyers. because deportation hearings are considered civil--not criminal-- But although the Ashcroft eavesdropping proceedings, immigrants have none of the scheme is unnecessary and indefensible, it rights available in criminal trials: to doesn't violate the right to counsel. The appointed counsel, to the exclusion of Sixth Amendment protects the attorney- illegally seized evidence, to have the client privilege only in a criminal government prove their dangerousness prosecution, while most of the aliens who beyond reasonable doubt. will have their conversations spied on by John Ashcroft will never be charged with A detained alien does have the right to a a crime. lawyer--if he can afford one. But in his most appalling decision of all, Ashcroft If the courts won't protect aliens from has undermined this right as well. On John Ashcroft, who can? The answer, for October 30 the attorney general approved better or worse, is Congress. The Bush a rule allowing federal agents to eavesdrop administration has shown little restraint in on conversations between federal inmates the domestic war against terrorism. And and their lawyers whenever "reasonable like any risk-averse federal agency, the suspicion exists to believe that an inmate INS is resorting to dragnets to protect may use the communications with itself against the charges of negligence that attorneys ... to facilitate acts of terrorism." will inevitably follow if more aliens Even though an inmate's conversation commit terrorist acts. As Schuck suggests, with his lawyer can't be used against him Congress should carefully oversee the by a criminal prosecutor, the presence of Justice Department's enforcement of the federal monitors will severely inhibit the new laws and regulations authorizing the ability of detainees-- innocent as well as detention of aliens. The Constitution, guilty--to speak candidly with their lawyers after all, gives Congress, rather than the and receive necessary legal advice. president, plenary authority over The Ashcroft rule isn't only an egregious immigration. One of the many incursion on privacy--it will also bring unfortunate features of Ashcroft's decision little in the way of increased security. to permit eavesdropping on attorney-client After all, lawyers already can't help their conversations is that it was clients commit new crimes, and they have announced without consulting Congress. an ethical obligation to report threats of Vermont Senator Pat Leahy is sufficiently terrorism or violence. Under the so-called exercised by Ashcroft's failure to consult "crime/fraud exception" to the attorney- Congress on a range of issues, including the establishment of military courts, that

102 he has scheduled oversight hearings. If of Japanese-Americans during World War Congress remains jealous of its II. It took 43 years for Congress to prerogatives to determine the fate of recognize its error. The Civil Liberties Act aliens, perhaps its oversight will restrain of 1988 issued an apology and $20,000 to an administration unwilling to restrain each of the Japanese-American citizens itself. and resident aliens interned during World War II. "We know we're going to regret Unfortunately, history does not offer this," says Alex Aleinikoff, a former much cause for optinisn. "The general counsel communist deportation cases supply of the INS under President Clinton. "Probably now is the almost experiment evidence of how little time we should be saying to the Congress itself is disciplined by the detained aliens, 'We know traditions of political tolerance," wrote we're taking something from you and we should pay you later."' Harry Kalven. "They suggest that Better yet, of course, would be not to Congress, when freed from constitutional detain them unreasonably in the first restraints, will pursue the logic of security relentlessly." place. Copyright © 2001 New Republic, Inc. In an even more famous abdication, Congress failed to object to the detention

103 Ashcroft Is Right to Detain Suspects in Terror Probe

The Wall Stwetfoumal

December 17, 2001

Griffin Bell

The horrific videotape of Osama bin In one sense, the arrests and detentions Laden chuckling over the killing of carried out in the wake of September 11 thousands of people shows his insane have not been "preventive" at all. The hatred of America. In addition to hatred, Justice Department has valid independent though, he has financial resources, reasons for detaining all of these technical education, experience and an individuals, who fall into three categories: international network of fellow those in violation of their immigration conspirators. One response by the Justice status, those wanted for crimes, and those Department to the serious threat we face whose testimony is deemed material to the from bin Laden and other terrorists has terrorism investigation. The Constitution been to jail several hundred people either and federal law gave the Justice on suspicion that they are terrorists or as Department the authority to arrest or material witnesses to terrorist crimes. I detain these groups of individuals long think the Justice Department's campaign before September 11. is consistent with the Constitution and the The Justice Department, for example, laws, and for the Justice Department to may, pending removal proceedings, hold have done less would have been aliens who have violated the terms of their irresponsible. entry into the United States. Obviously, it The most fundamental safeguard against may arrest individuals suspected of arbitrary imprisonment is habeas corpus. committmig crimes. And it is permitted -- This old Latin term means that a court if a federal court approves -- to detain may order the government to produce any individuals who are material witnesses in prisoner in court and justify its detention an ongoing criminal proceeding, provided of that person. The Constitution prohibits their availability cannot otherwise be the suspension of habeas corpus "unless guaranteed. That the government also when in Cases of Rebellion or Invasion seeks information about the September the public Safety may require it." attacks from these individuals does not President Lincoln, without congressional invalidate the reasons for their detention. approval, suspended habeas corpus At the same time, the Justice nationwide several times, and he often Department's recent actions are suspended it locally. Any person held in undernably preventive, in that detentions, -- is entitled to jail -- citizen or not while legally valid, are being used in petition the courts for habeas corpus. unprecedented numbers to thwart further During World War II the Supreme Court terrorist attacks. In directing these actions, heard the appeals of both German Attorney General John Ashcroft saboteurs and Japanese General is assisting President Bush in fulfilling his Yamashita through habeas corpus constitutional petitions. duty to faithfully execute the laws and to provide for the nation's

104 defense. The Supreme Court has Department has provided these detainees permitted law enforcement to detain with written information about how to individuals for relatively minor violations obtain assistance from aid organizations in the course of investigating more that can provide representation. Once significant crimes. Even under normal counsel is secured, individuals can circumstances, the Justice Department -- institute habeas corpus proceedings to if a federal court approves -- may detain challenge the legality of their detention. without bond criminal defendants who are Last week's indictment of Zacanas a flight risk or who pose a danger to the Moussaoui by a federal grand community. jury provides ample proof that preventive These tools are even more vital as the detentions are a vital aspect of the government pursues the war on terror. government's battle against terrorism. This June, in Zadvydas v. Davis, the Federal agents arrested Mr. Moussaoui in Supreme Court acknowledged that August for suspected immigration terrorism constituted a special violations after the Minnesota flight circumstance, "where special arguments school where Mr. Moussaoui was a might be made for forms of preventive student became concerned because he had detention and for heightened deference to no interest in learning to take off or land. the judgments of the political branches As a result, Mr. Moussaoui -- who may with respect to matters of national have intended to be the 20th hijacker on security." The new provisions of the Sept. 11 -- was in federal custody at the Immigration and Nationality Act, which time of the attacks. permit the indefinite detention of Sixty years ago, Franklin Roosevelt spoke suspected terrorists pending criminal or of a world founded upon four essential removal proceedings, are consistent with human freedoms. Chief among these was the discretion afforded the administration freedom from fear. Terronsts now pose a in fighting this unique threat. dire threat to this freedom. No one can Even in this area, however, the Justice dispute the Justice Department's right -- Department's actions, and their effects on indeed, its obligation -- to use every civil liberties, are subject to judicial review. legitimate means at its disposal to prevent All individuals arrested or detained, further terrorist attacks. Provided the whether for immigration violations, individuals detamed have access to criminal offenses, or as material witnesses, counsel, and are treated fairly and with must be brought before a judicial officer respect, "preventive detentions" are a after being taken into custody. legitimate part of the administration's efforts to Individuals arrested on criminal charges or preserve America's freedom from fear. as material witnesses also have the right to appointed counsel. And although individuals held on immigration violations Mr. Bell was U.S. attorney general under are not entitled to counsel at taxpayer's President Carter. expense, they certainly have a right to be represented by a lawyer. The Justice Copyright @ 2001, Dow Jones & Company, Inc.

105 Judge: U.S. May Jail Material Witnesses; N.Y. Ruling Conflicts with Decision in Prior Case in Same Federal District

The Washington Post

July 12, 2002

Steve Fainam

needed to read the decision and consult government may forcibly detain The with his client before deciding whether to witnesses to gather evidence in its appeal. nationwide terrorism investigation, a federal judge ruled today, rejecting as Legal experts said the constitutionality of "flawed" a previous federal ruling that the the government's use of the material tactic is unconstitutional. witness statute is likely to be decided in the higher courts. "It's not surprising on The judge, Michael B. Mukasey, ruled that an issue like this -- which in Judge the Justice Department has legally Scheindlin's case was a very new and imprisoned as "material witnesses" dozens different kind of an issue -- that there of men authorities believe may be able to would be a difference of interpretations," provide important information to grand said Neal R. Sonnett, a former assistant junes investigating terrorism. He refused U.S. attorney now in private practice in to grant the deportation of an unnamed Miami. immigrant who argued he had been illegally jailed. The government's use of the material witness statute has been perhaps the most On April 30, Shira A. Scheindlin, who like controversial tactic to detain suspects in Mukasey presides in New York's Southern the terrorism investigation. The statute District, dismissed perjury charges against was last updated by Congress in 1984. It is a Jordanian college student who had been designed to allow authorities to detain an "unlawfully detained," ruling that "since individual believed to hold information 1789, no Congress has granted the critical to a "criminal proceeding" if the government the authority to imprison an person cannot be compelled to testify in innocent person" to testify before a grand any other way. jury. Before the Sept. 11 terrorist attacks, the In a 37-page opinion, Mukasey rejected statute had been invoked rarely, usually in Scheindlin's ruling, saying that her cases where a person presented a flight interpretation that material witnesses risk. However, the government appears to should be excluded from grand jury have detained as material witnesses people something that proceedings is "to perceive it believes may be terrorism suspects or is not there." who may be able to appear before a grand The government has appealed Scheindlin's jury to testify about evidence critical to ruling to the 2nd Circuit Court of the investigation. Appeals. Neil S. Cartusciello, who Osama Awadallah, the Jordanian student represented the "John Doe" material covered by Scheindlin's ruling, was witness before Mukasey, said tonight that arrested he was "disappointed in the outcome" but as a material witness after

106 Awadalaer he said it as gh cas 2ly to affect ': 1ight (g 20t2 tTe

107 Judge Orders U.S. to Release Names of 9/11 Detainees

The New York Times

August 3, 2002

Neil A. Lewis

A federal judge ruled today that the Bush In some cases, the courts have been administration had no right to conceal the receptive to the government's arguments, identities of hundreds of people arrested but in several others judges have resisted after the Sept. 11 terror attacks, and she claims of broad executive authority. ordered that most of their names be released within 15 days. In one case, both a district court and an appeals court panel ruled against the The ruling by Judge Gladys Kessler of government in Michigan, saying the Federal District Court dealt a significant Justice Department could not close setback to the government's policy of deportation proceedings to the public and secret detentions, mostly of immigrants, in the news media. connection with the Sept. 11 investigation. Judge Kessler rejected the Justice The government gained a victory Department's arguments that disclosure of elsewhere in the courts this week when a the names would impede its investigation federal judge ruled that the more than 560 of terrorists. She said that while it was the prisoners detained at the Guantanamo obligation of the executive branch to Naval Base in Cuba were beyond the ensure the physical security of American reach of United States courts. citizens, "the first priority of the judicial branch must be to ensure that our Justice Department officials will probably government always operates within the ask a federal appeals court to delay Judge statutory and constitutional constraints Kessler's ruling from taking effect while it which distinguish a democracy from a appeals, but officials there said today that dictatorship." they had not yet decided to do so. Nevertheless, Robert McCallum, the "Unquestionably," she added, "the public's assistant attorney general for the civil interest in learning the identity of those division, had harsh words for Judge arrested and detained is essential to Kessler's ruling. verifying whether the government is operating within the bounds of law." "The Department of Justice believes today's ruling impedes one of the most Judge Kessler's opinion in the case, which important federal law enforcement had been brought by a broad coalition of investigations in history, harms our efforts groups, including some civil liberties to bring to justice those responsible for organizations, was the latest ruling issued the heinous attacks of Sept. 11, and in the handful of cases now making their increases the risk of future terrorist threats way up the federal court system to our nation," Mr. McCallum said. challenging some of the government's policies put in place after the Sept. 11 He said the F.B.I. and the department's attacks. criminal division "firmly believe that the

108 information sought by the plaintiffs, if Judge Kessler asked the government to released, could jeopardize the provide further evidence why the names investigation and provide valuable of materials witnesses should not be information to terrorists seeking to cause released. even greater harm to the safety of the American people." The suit asking for disclosure of the immigration detainees' names was brought The opinion noted that the government by 22 advocacy groups, including the said on Nov. 5 that it had detained 1,182 Center for National Security Studies, the people in connection with the Sept. 11 American Civil Liberties Union, the investigation. But Judge Kessler suggested Reporters Committee for Freedom of the that the numbers were confusing and that Press, the American-Arab Anti- the Justice Department has never given a Discrimination Committee and People for full accounting of who had been arrested. the American Way Foundation.

"As of this moment," she said, "the public Kate Martin, of the Center for National does not know how many persons the Security Studies and the lead lawyer for government has arrested and detained as those challenging the government's policy, part of its Sept. 11 investigation, nor does called the ruling "a vindication of our it know who most of them are, where they basic liberties and a demonstration that are and whether they are represented by the courts are there to stop government counsel." abuses."

Amid the uncertainty, the judge noted that Ms. Martin said it showed that the events the Justice Department had provided of Sept 11 "may not be used as an excuse some numbers, notably that 751 people to suspend basic rights." were arrested for immigration violations. As of June 13, only 74 remained in Although most of the people who would custody, the rest having been released or be affected are no longer in custody, she deported. said, the ruling still has great value.

That is the category most directly affected "It will prevent the government from by Judge Kessler's order. If her ruling doing this again," she said. "Moreover, it stands, the government would have to will give us the information to evaluate release the names of at least those 751, how these people were treated and even those who have left the country. whether this was a random roundup of Arabs and Muslims or a legitimate The government has also said that it targeted investigation of terrorism as the arrested and charged 129 people on government has claimed." federal criminal charges and that it has already released those names. The Justice Department had argued that the disclosure of the names of those The last category encompasses people arrested for immigration violations would arrested as material witnesses. The hinder the investigation. It would, they government has never disclosed the said, reduce the inclination of detainees to number or identities of those people but it help authorities because the terrorist has been estimated to be about two groups would intimidate or cut off contact dozen, most of whom have been released. with them once their names were known.

109 Judge Kessler said that argument was Attorney General John Ashcroft has been unpersuasive since the terrorist groups the most vocal defender of the must already know who was arrested as government's refusal to identify everyone those in custody have always been free to who had been arrested. He has repeatedly disclose their situation to the public. said he was prevented from disclosing the names because it would violate the privacy Judge Kessler dismissed as too speculative of those arrested. the government's argument that the release of the names would allow terrorist Judge Kessler said that the government groups to track the progress of its might ask detainees if any wanted their investigation. The government put name excluded from the list and that if forward a so-called "mosaic theory" of the any asked for confidentiality, it would be investigation, arguing that there are bits of respected. information like the names of the detainees that may seem useless by Copyright © 2002 The New York Times themselves but can form part of a larger, Company revealing picture.

110 Military Tribunals: Swift Judgments in Dire Times

USA Today

November 15, 2001

Joan Biskupic and Richard Willing

be created by Defense Secretary Donald President Bush's order allowing military Rumisfeld to try suspected terronists tribunals to try accused terrorists sets the wherever they are captured, whether in stage for something not seen since World Afghanistan, the United States or War II: an emergency legal system elsewhere. designed to biing swift judgment, using rules that make convictions easier but They deeply worry civil libertarians. also could be used to try suspects already in custody, including at least two With the Taliban on the run in Muslim extremists who authorities say had Afghanistan and investigators here contact with the 19 hijackers in the continuing to seek possible associates of months leading up to the attacks on the the Sept. 11 hijackers, Bush's order is a World Trade Center and the Pentagon. signal that the next battlefield in the war Any on terrorism will be the courtroom. tribunal could face a legal challenge from defendants demanding a jury trial in The Bush administration defended its a public court. But legal precedent is on extraordinary order Wednesday, saying Bush's side. that the shadowy nature of al-Qa'eda White terrorists, who dress as civilians and attack House counsel Alberto Gonzales a nation from within, demands a special says that Bush's decision to permit the system-of justice that recognizes the needs panels was driven by two considerations: of national security and the unusual The need to conduct trials where threats that terrorists pose. For example, terrorists are captured, especially when military tribunals can use secretly collected returning them to the United States could wiretap evidence and other confidential pose security risks. information not admitted in ordinary * The need for special trial rules to allow trials; secret testimony from informants, confidential information gathered by U.S. and hearsay evidence. intelligence to be used against terrorists The foreign terrorists who could be without having the information revealed subjected to such tribunals "don't deserve in open court. to be treated as prisoners of war," Vice Because they permit President Cheney said. "They don't secret testimony, military tribunals or commissions, as they deserve the same guarantees and also are called, allow prosecutors to safeguards we use for an Amencan citizen." withhold sensitive information that they would be required to disclose during an ordinary criminal trial. It was unclear Wednesday when, or even if, the Bush administration plans to Muslim extremists charged with trying to empanel a military court, or specifically blow up the World Trade Center in 1993 whom it might try. Military panels could were tried in federal criminal court. Trial

111 records included structural details of the was left with more questions than answers twin towers, which prosecutors say may by Bush's directive. "We need to have been used by the Sept. 11 hijackers understand the international implications to determine the type of jet needed to of the President's order, which sends a knock down the twin towers. message to the world that it is acceptable to hold secret trials and summary "'The best evidence against a person might executions," Leahy said. Harvard be classified, and to get a conviction we University law professor Anne-Marie might need to disclose it," Gonzales says. Slaughter, who has studied tribunals, said: Military tribunals are rarely used but are "President Bush has said this is a war to deeply rooted in U.S. history. They have bring terrorists to justice. So the real withstood federal court challenges in the question is, what's justice? That requires a 19th and 20th centuries, and were fair trial and proof beyond a reasonable approved unanimously by the Supreme doubt, and that is not the aim of a military Court when they last were used during tribunal." A better option, she says, would World War II. be convening an international war crimes Besides protecting U.S. intelligence tribunal. networks, the military tribunals' Bush's order Tuesday was the latest in a advantages include speed. Six German series of administration moves that have saboteurs who sneaked into the USA infuriated civil libertarians. It came on the during World War II were caught, tried same day the Justice Department and executed, with time out for a Supreme announced it would try to question more Court appeal, during a 7-week period in than 5,000 men who have entered the 1942. country since January 2000 from nations linked to the al-Qa'eda terrorist network Another advantage, as Cheney indicated, is that trying terrorists in military court A week ago, the administration made clear sends a clear signal that they are that it would wiretap prisoners' international outlaws, not entitled to even conversations with their lawyers if officials the rudimentary rights afforded ordinary believe the prisoners might be passing on prisoners of war. terrorist information. "This is the answer for what we're dealing "There is a natural temptation to hunker with: unlawful belligerents who do not down whenever we are in crisis," says come within our constitutional structure," New York University law professor says Catholic University law dean Douglas Joshua Rosenkranz. "But there is a danger Kmiec, who supports the use of military that this hysteria-driven effort to protect tribunals. "The president's order is not to ourselves is weakening the foundations extraordinary when one places it in the of our democracy." context of historic military campaigns." Military as judge and jury But some members of Congress are critical of Bush's move. U.S. Rep. John Military commissions essentially set their Conyers, D-Mich., the ranking Democrat own rules. on the House Judiciary Committee, says Under Bush's order, the tribunals could sit military commissions are based on the at any time and any place. Military officers "thinnest legal precedents" and could would serve as judge and jury, deciding "antagonize our allies." Senate Judiciary both the law to be applied and resolving Chairman Patrick Leahy, D-Vt., says he

112 disputes over facts that usually are the New York as well as a network of backers domain of a jury. in the USA. Instead of a unanimous verdict, the votes But the plan began to unravel of only two-thirds of the members of a immediately, when a Coast Guardsman on military panel would be needed to convict beach patrol encountered some of the and sentence a defendant, and even terrorists and heard them speaking impose the death penalty. German. The men escaped to New York City. Fearful that Bush would decide who would be subject they would be caught, two of the Germans contacted the FBI to the tribunal, based on his belief that an and betrayed the other six. individual is a member of al-Qa'eda or has committed or helped commit international A week after the arrests, President terrorism. Franklin Roosevelt signed an executive order authorizing a military commission The order gives Rumsfeld the power to to try the men. The men turned to the detain anyone Bush targets, but also Supreme Court, citing an 1866 case that requires that the suspect be "treated forbade the military trial of any American humanely, without any adverse distinction civilian while based on race, color, religion," and be ordinary courts were open. But the court said the Germans were "allowed the free exercise of religion." "unlawful belligerents" who had entered The president would have the option to the country clandestinely and thus had no review a verdict and make any final rights to a public trial or a trial by jury. decision in the case. But any death The men were tried in secret sentence would lead to calls for a Supreme before a military Court review. panel and convicted. The two who cooperated received prison sentences Bush dodged one potential legal obstacle and the other six were executed, 7 weeks by declaring that the tribunals would not after they were captured. be used to try U.S. citizens. Two of the Military trials were common during Nazi saboteurs tried during World War II the Civil War, when 13,000 soldiers held American citizenship, and their trials and civilians were were complicated by their claims that their tried before about 5,000 commissions. The cases should have been handled by a most memorable standard federal court. occurred at the war's end, when eight civilians with Confederate ties were tried Tribunals have precedents in May and June 1865 for helping John The case involving the Nazi saboteurs had Wilkes Booth carry out the assassination some parallels with the hijackings. Eight of President Lincoln. Germans were dropped off by U-boats on That panel was created by President beaches near Amagansett, N.Y., and Andrew Johnson, Lincoln's successor, Jacksonville, Fla. The men, all of whom who like President Bush signed an order previously had lived and worked in the based on his law department's USA, spoke fluent English, wore recommendation. Johnson's attorney American-style clothes and carried general, James Speed, argued that the blasting caps and other sabotage tools. assassination was an act of war because Their instructions, written in invisible ink under the Constitution. Lincoln was on pocket-handkerchiefs, identified commander-in-chief. industrial targets in Chicago, Detroit and

113 Edward Steers, author of Blood on the Little dissent in Congress Moon, a history of the assassination, says To this point, Congress has been largely pragmatic reason for Johnson had a more mute in response to Bush's plan. Many a military trial: avoiding a jury of members want more details about the Confederate sympathizers who lived in tribunals. Sen. Carl Levin, D-Mich., Washington, which despite being the U.S. chairman of the Armed Services capital essentially was a Southern city. Committee, said he had concerns about After a 50-day trial, all eight were found the order, especially the extent to which guilty by a panel of seven generals and the trials can be kept secret. But the two colonels. By a two-thirds vote, four influential Democrats stopped short of defendants were sentenced to hang, and criticizing the president. others received long prison four In Washington, investigators pursuing the sentences. It took less than 3 months hijacking inquiry said the possibility of from the time of the assassination for the military trials gives them one more tool to sentences to be carried out. persuade persons with knowledge of how "That's the beauty of the thing . . . from the hijackings were done to talk to the government's perspective," says James authorities. Retribution, a Hall, co-author of Come The possibility that a potential defendant study of Civil War terrorism. "Things may have to face a military panel, said one move quickly, and from a legal standpoint veteran investigator, could be a potential it's all self-contained." "mind-focuser." case also is similar in several The Lincoln Investigators say at least two men to the current situation. respects currently in custody were linked to the Historians note that Booth and his co- Sept. 11 hijackings but that their to kill not just conspirators intended involvement would be difficult to prove President Johnson and Lincoln but Vice "beyond a reasonable doubt," the standard Secretary of State William Seward, who of an ordinary criminal court. was next in line for the presidency. Had Johnson and Seward also been killed, the Zacarias Moussaoui, a French citizen with Constitution as then written made no ties to radical Muslim groups, was arrested provision for choosing a new president. on immigration charges nearly a month before the Sept. 11 attacks. He has been "It was a formula for civic chaos or linked to some of the hijackers through confusion with parallels" to the Sept. 11 phone intercepts. attacks, says Michael Maione, historian at Ford's Theatre, where Lincoln was shot. A second suspect, pilot Lotfi Raissi, is believed to have coached the hijackers on As the US. government has done in the flying techniques before the attacks. He is rounded up hijacking probe, authorities being held in London and is fighting and detained large numbers of potential extradition to the United States. suspects. About 200 were arrested and held, author Michael Kauffman estimates, Attorney General John Ashcroft said in a nation whose population was about Wednesday that Bush's plan recognizes one-ninth what it is now. Federal the potential difficulty in trying terrorism investigators have detained and suspects. questioned more than 1,200 in the "The United States is in a state of war," he investigation of the terrorist attacks. said. "It's important to give the president

114 * *cQ' t cna1 ) Inc. pan y o 01G ne Coorht eStates hie bs authooty. oj the etent ResbItY cons U.S. Adds Legal Rights in Tribunals; New Rules Also Allow Leeway on Evidence

The Washington Post

March 21, 2002

John Mintz

The Bush administration has settled on a Despite the furor, many U.S. officials have complex set of military tribunal concluded that there may be little use for regulations more advantageous to al the tribunals because the great majority of Qaeda and Taliban defendants than the the 300 prisoners being held at the U.S. guidelines President Bush originally issued naval base at Guantanamo Bay, Cuba, are in November, knowledgeable sources said low-ranking foot soldiers, sources said. yesterday. The tribunals are planned only for relatively high-ranking al Qaeda and The new rules would require a unanimous Taliban operatives against whom there is vote of judges to impose the death penalty persuasive evidence of terrorism or war on convicted terrorists -- not the two- crimes. thirds vote Bush had suggested in his Nov. 13 executive order establishing the "The world now will begin to see what we tribunals. And while the president's meant by a fair system that will enable us original order barred appeals after to bring people to justice [but] at the same conviction, the new regulations allow time protect citizenry," Bush told military officers to review a tribunal's reporters yesterday. decision on appeal. Administration officials have other plans Yet the new rules, scheduled to be for many of the relatively junior captives announced today, also give prosecutors now at Guantanamo Bay indefinite more leeway than they would have in detention without trial. U.S. officials criminal courts. Hearsay or secondhand would take this action with prisoners they evidence could be used in the new fear could pose a danger of terrorism even tribunals, for example, although it is if they have little evidence of past crimes. barred in ordinary criminal trials and Human rights groups expressed differing courts- martial. opinions about the new tribunal rules. All Bush's original order brought a barrage of contended that some provisions still criticism from human rights groups and violate the rights of prisoners, but some European officials who said it could expressed relief that the regulations had violate the rights of suspects brought to been softened since Bush announced trial by the United States. In the four them. months since, experts from the White The tribunals, sometimes called House, the Defense Department and the "commissions," will resemble military Justice Department have been slowly courts-martial in composition. They will working out the details of what could have three to seven members. become one of the most controversial aspects of the U.S. war on terrorism. In cases where the death penalty is not a possibility, defendants can be convicted by a two-thirds vote. Those convicted in

116 tribunals will be allowed to ask a review laws of war, such as conducting hostilities panel appointed by the president -- while posing as a civilian, or committing consisting of three people, one of whom crimes against civilians, sources said. Bush will be a military judge -- to reconsider also likely would file conspiracy charges their cases. Defendants will not be against such suspects, allowing allowed to appeal to the federal courts. prosecutors to use evidence involving one member of al Qaeda against others. The rules of evidence governing cases before the tribunals will be considerably The human rights group Amnesty looser than they are in U.S. criminal International said the new regulations courts. In ordinary criminal cases, a violate suspects' rights in many ways. The witness cannot offer hearsay evidence -- worst provision, the group said, is that information based on what someone else convictions could be appealed only to has said. But hearsay testimony will be higher panels also named by the president, allowed before military tribunals, sources rather than independent judicial bodies -- said, because the government must show a practice it said was "deeply troubling." only that the evidence has "probative Human Rights Watch expressed value to a reasonable person." misgivings about the same provision. "In In criminal trials, prosecutors must America, we've never let our political establish a "chain of custody" for leaders decide who is guilty," said the evidence, such as documents or group's Washington representative, Tom fingerprints, to prove that police handled Malinowski. "That's been a fundamental it properly after obtaining it. principle since 1789." But in terrorism cases brought before Even so, he added that the milder rules tribunals, which may involve papers or "go a long way to meet the concerns of computer disks retrieved by U.S. soldiers human rights groups. . . . It will help the from rubble-strewn al Qaeda hide-outs in Bush administration climb out of the deep Afghanistan, prosecutors need not hole it dug for itself . .. last fall." establish chain of custody. "It's not like Ruth Wedgwood, an international law we have a crime scene where a bloody expert at Yale University who supports glove got left behind," said one source Bush's plan, said administration officials knowledgable about the government's have been judicious and concerned with deliberations. the nation's security throughout the The trials will be open to the public, and process. the defendants will be able to hear the "The time [government attorneys] have evidence against them. But the hearings taken on this shows the seriousness with can be closed -- even to the defendants -- which they were taking on the criticism," if classified information is used or the she said. "This was clearly very carefully discussion could endanger national done." security. In such cases, defense lawyers with security clearances could still be In general, sources said, there will be four present, but would not be allowed to categories of prisoners: those deemed reveal the secrets to their clients. innocent and released; those repatriated to their countries for trial; those tried before Any alleged terrorists whom the president military tribunals; and those detained ultimately brings before the new tribunals without charge. Human rights groups likely would face charges of violating the

117 have expressed concerns about the last wielding weapons of mass destruction -- group. as exactly that, legal sources said. U.S. officials will rely in part on decisions Another legal precedent for this type of by European human rights courts that detention without criminal charge is the allowed British authorities to detain Irish practice of involuntary hospitalization of Catholic and Protestant militants for long mentally ill people who pose a danger to periods of time if they were deemed themselves and others, legal sources said. dangerous but not necessarily guilty of a "In a state of real emergency, various crime, sources said. Those courts allowed liberties can be suspended," said one the detentions as long as British officials attorney who advised the administration periodically reviewed the cases. on the rules. International law allows for such Staff writer Juliet Eilperin contributed to indefinite detention only in cases of this report. national emergency, and administration attorneys view the current situation -- with Copyright D 2002, The Washington Post a danger of clandestine terrorists possibly Co..

118 Having Their Day in (a Military) Court

NationalReview

December 17, 2001

Robert H. Bork

AT WAR years or more through appeals followed by one habeas corpus petition after How best to prosecute terrorists another. An open trial and proceedings of THE debate over the president's order that length, covered by television, would creating military tribunals to try suspected be an ideal stage for an Osama bin Laden terrorists consists largely of warring to spread his propaganda to all the Muslims in the world. Many Islamic slogans and overripe rhetoric: "shredding our Constitution," "seizing dictatorial governments would likely find that power," etc., on the one hand, and some aroused mobs make it impossible to version of "the bastards don't deserve any continue cooperating with the U.S. better" on the other. Analysis is in short The conclusive argument, however, is that supply. The issue of the balance between in open trials our government would security and civil liberties will be with us, inevitably have to reveal much of our in various guises, for a long time to come. intelligence information, and about the The reality we face means that no means by which it is gathered. Charles resolution of such issues will be wholly Krauthanmmer notes that in the trial of the satisfactory. bombers of our embassies in Africa, the When the issue is trying terrorists, there prosecution had to reveal that American appear to be only four options: trial in a intelligence intercepted bin Laden's federal court; trial before an international satellite phone calls: "As soon as that tribunal; trial before a military tribunal; or testimony was published, Osama stopped setting the captives free. Nobody this side using the satellite system and went silent. of a psychiatric ward will choose the last We lost him. Until Sept. 11." Disclosures option. But the first and second don't win in open court would inform not only any prizes either. Middle Eastern terrorists but all the intelligence services of the world of our Trials in federal courts have features that methods and sources. make them totally inappropriate for the trial of terrorists. Jurors often respond to Trials before an international tribunal emotional appeals, and, in any event, would have all of these defects and more. would have good reason to fear for their Picking the members of the court would and their families' safety if they convicted. itself be a diplomatic nightmare. It would Criminal trials have been adorned by be politically impossible to keep judges judges with a full panoply of procedural from Islamic countries off the court. In the past, moreover, hurdles that guarantee a trial of many international courts months. Appeals and petitions for habeas have often shown a pronounced corpus can take years, and should the antiAmerican bias. Our prosecutor would death sentence be given, the ACLU has be helpless to avoid a propaganda circus shown how to delay execution for ten and the disclosure of our intelligence capabilities and methods. In the end,

119 convictions would be highly uncertain, constitutionality. They are not. The but, if obtained, impassioned dissents and constitutional issue reached the Supreme the martyrdom of the terrorists would be Court in Ex parte Quirin (1942). German certain. We should be wary of saboteurs had entered the United States international tribunals in any event since illegally to destroy war industries and their establishment seems part of a more facilities. Arrested by the FBI before they general move to erode U.S. sovereignty by could act, they sought to file for writs of subjecting our actions to control by other habeas corpus, contending they had a nations. right to trial before regular courts rather than a military commission. The Military tribunals avoid or at least mitigate presidential proclamation establishing the these problems. Propaganda by televised commission denied them access to those speeches would be impossible and any courts. required disclosure of intelligence methods and successes would be secret. The Court denied the petition, judging it Since trials could move far more irrelevant that one of the defendants efficiently and appeals are cut off by the might be an American citizen. In its president's order, punishment of the guilty decision, the Court made clear the would be prompt. One of the prices we separate constitutional tracks of the two pay for an all-volunteer military is that for forms of justice: "Presentment by a grand most Americans their armed forces are an jury and trial by a jury ... were at the time unknown world about which it is possible of the adoption of the Constitution to imagine all sorts of evils; but military familiar parts of the machinery for tribunals are not, as they have been called, criminal trials in the civil courts. But they "kangaroo courts" or "drumhead were procedures unknown to military tribunals." Much of the public is probably tribunals which are not courts in the sense frightened by visions of defendants of the judiciary Articles" of the convicted out of hand and bustled off to Constitution. Consistent with that firing squads. understanding, military tribunals have been used by several presidents in time of During the Korean War, the officers in war. In the Revolutionary War, before my battalion took turns prosecuting and there was a Constitution, George defending. (I had a notable lack of success Washington employed such tribunals in both roles.) I sat on the court, and freely, as did Abraham Lincoln in the Civil never saw an innocent man convicted but War, and did see a guilty man acquitted. (I Franklin Roosevelt in World War II. We remember the Nuremberg prosecuted that one and it still rankles.) trial, with many of the trappings of Even then, before the widespread reform a civilian court, as an attempt (failed of the military justice system, military in my view) to establish an international rule of courts manned by officers, in my opinion law in open proceedings. That trial and that of many others, were superior to is not a model for the problem we the run of civilian courts, more scrupulous face now. There were, of course, in examining the evidence and following no problems of intelligence disclosures, but, more the plain import of the law. If I were important, the open trial was guilty, I would prefer a civilian jury; if not regarded by the allies as the only, or in innocent, a military court. all cases the preferred, method of proceeding. These virtues would be irrelevant if According to Mark Martins, a respected military tribunals were of dubious scholar and military lawyer, "German

120 regular army soldiers were also defendants trying the terrorist. The terrorists could in many of the thousands of military well go free. courts and commissions convened by the Contrary to some heated reactions, war in different zones of Allies after the military tribunals are well within our occupation." tradition. They are needed now more than If there is a problem with Bush's order, it ever. is the exemption of U.S. citizens from Mr. Bork, an NR contributing editor, has trials before military tribunals. Quirin held been a Marine, lawyer, law professor, that Americans can be tried there, and it is solicitor general, acting attorney general, clear that they should. The trial of and judge. American terrorists in criminal court would pose all the problems of trying Copyright 2001 0 National Review, Inc. foreign terrorists there: The prosecution would have to choose between safeguarding our intelligence capacity and

121 Justice Can't Be Done in Secret: Why Public and Press Have a Right to Witness Proceedings of Military Tribunals.

The Nation

June 10, 2002

Edward J. Klaris

the delicate balance federal courts have On March 21, the Defense Department struck between the First Amendment issued its long-awaited regulations right of the press and public to observe governmg the trials of alleged terrorists in criminal trials and the government's desire military tribunals. The regulations answer to protect classified information. some of the criticisms raised against the preliminary order issued by the Bush Military tribunals have been used Administration in November. The periodically throughout US history, and government will, for example, permit the Supreme Court during the Civil War defendants to have court-appointed and World War II was asked to decide military lawyers, defendants will be whether the President had the power to presumed innocent until proven guilty and create these tribunals under his death-penalty sentences must now be constitutional authority during times of unanimous. On the key question of war. Those Supreme Court cases--some of whether trials will be held in secret, which upheld the wartime powers of however, the government answered its Presidents to create tribunals and one that critics somewhat misleadingly. The held after the Civil War that President regulations do state that trials should be Lincoln had exceeded his powers--have open, but they also give the judges looked at the impact on the constitutional complete discretion to close the rights of the defendants. No court has proceedings to the press and public for ever considered the constitutional rights just about any reason. The regulations also of the press and public to attend and stress that "no provision in this Order report on proceedings in military shall be construed to be a requirement of tribunals. the United States Constitution." Public criminal trials are so commonplace President George W. Bush is determined in our society that few think twice about to use military tribunals rather than federal the rights underlying this openness. When courts to try noncitizen terrorists either in they do, the criminal defendant's Sixth this country or abroad. According to Amendment right to a public trial usually recent reports, one reason to favor comes to mind. However, it is now military tribunals is that the government is beyond dispute that a separate right of hoping to obtain convictions without access to attend trials also arises from the having specific evidence that the First Amendment. That right to attend defendants engaged in war cnimes, criminal proceedings--which belongs to something a federal court would require. the press and public, not to the But even if military tribunals are used to defendants-- mandates that trials be open, avoid certain evidentiary requirements absent compelling and clearly articulated against noncitizen defendants, there is no reasons for closing them. This good reason for the President to abandon independent constitutional right of access

122 was first recognized by the Supreme allegedly sought to terronize and Court in 1980 in Richmond Newspapers undermine the United States will be tried. v. Virginia. In that case, the Court held While the defendants may not have that an order closing the courtroom for constitutional rights because they are the trial was unconstitutional, noting the noncitizens captured abroad, the press public policy reasons behind the rule: and public do not give up their rights "When a shocking crime occurs, a based solely on the forum chosen by the community reaction of outrage and public President. The nght of access, though, is protest often follows, and thereafter the not absolute. There are many rules federal open processes of justice serve an judges follow that balance the right of important prophylactic purpose, providing access against the need for closure--for an outlet for community concern, example, when national security hostility, and emotion." In describing the information might be revealed in court. If need for open criminal proceedings, the typical First Amendment guidelines Professor Laurence Tribe of Harvard Law are applied in the military tribunals, School wrote: "The courthouse is a classified information will be shielded 'theatre of justice,' wherein a vital social from improper disclosure and appropriate drama is staged; if its doors are locked, the access will be provided the press and public can only wonder whether the public. solemn ntual of communal condemnation Terrorists, hijackers, spies, mobsters, drug has been properly performed." dealers and others have all been tried in The United States Court of Military open federal court, where the First Appeals has also recognized the Amendment applies, in cases involving constitutional right of access, mandating serious national security concerns, without the same test for closure in courts-martial classified information being leaked. as applied by federal courts: "where the Federal judges routinely close the state attempts to deny the right of access proceedings for a limited time when in order to inhibit the disclosure of classified information is introduced into sensitive information, it must be shown evidence. The Classified Information that the denial is necessitated by a Procedure Act permits prosecutors to compelling governmental interest, and is keep from defendants and the public narrowly tailored to serve that interest." In certain sensitive information, and federal both federal courts and courts-martial it is judges must defer to the government's now clear that these rights belong to the reasonable concerns about national public, not to the government or the secunty. defendant, and are fundamentally The most recent federal prosecution of necessary for the effective functioning of terronsts is an example of how a court our cnrminal justice system. Neither the effectively handled national security defendant nor the government nor both information while balancing the press and jointly can shield a proceeding from public's First Amendment rights of access. public view without meeting the stringent In early 2001 Judge Leonard Sand in New constitutional test. York presided over a trial of four Military tribunals are the functional members of Al Qaeda, who were jointly equivalent of federal courts and courts- charged with Osama bin Laden in a far- martial in terms of the press and public's reaching conspiracy that spanned at least right of access. The tribunals will act as a ten years. The conspiracy culminated in "theatre of justice" where those who the truck-bombing of the United States

123 embassies in Nairobi, Kenya, and Dar es introduced and sometimes ruled that Salaam, Tanzania, on August 7, 1998, evidence should come into open court. when 224 people, including twelve Despite the intricacy and sensitivity of the Americans, were killed and more than underlying issues, the trial was open and 4,500 others injured. the public was able "to participate in and serve as a check upon the judicial Once the trial began, Judge Sand balanced process," wrote the trial court in its the need for secrecy with the First opinion. Acknowledging the importance Amendment requirement that the trial of an open trial in a "controversial" case must, except in extraordinary such as this one, the judge wrote that he circumstances, be open to the public. Jury "sought to make public all selection, for example, was closed, based had specifically aspects of these proceedings to the extent on the court's determination that legally permissible." openness would discourage prospective jurors from being candid about their Similarly, Oklahoma City bomber views of capital punishment. Judge Sand Timothy McVeigh was tried and also ruled that for their own protection convicted in open federal court with the identity of the jurors would not be classified information shielded from released. Similarly, when an FBI improper disclosure. From the outset, informant took the witness stand, the publicity was pervasive and intense. judge ordered the courtroom artists not to Massive amounts of secret government sketch him. Judge Sand closed the materials were introduced as evidence, courtroom so that two secret plea including more than 10,000 FBI interview agreements could be reached; he sealed reports. The news media sought access to documents and heard secret testimony a variety of documents that had been filed about the jail conditions of the Al Qaeda under seal. Balancing the interests of defendants. As a result, no classified secrecy and openness, Judge Richard information was leaked. Matsch condemned the "routine practice of sealing documents without adequate The press, which inserted itself into the recognition of the public interest," and he case by filing motions with Judge Sand for granted access to some access, criticized even these restrictions on of the documents sought. The trial itself was open to the First Amendment grounds. In a trial that public. To protect the jury, the judge had involved four months of testimony, ninety-two witnesses called by the a custom-built wall erected between them and spectators. He scrambled juror prosecution and more than 1,300 exhibits, numbers so that the actual limitations on access were the public could not match individual minimal. The constitutional balance jurors with the answers between access and protection of national given to questions during voir dire and security information was maintained. kept the identity of individual jurors confidential. Each of these actions was Several other federal trials have handled challenged by a coalition of seventy press similar secrecy concerns. The 1991-92 trial representatives at the time, but citing juror of former Panama dictator Gen. Manuel safety and privacy, the judge refused to Antonio Noriega involved undercover budge. government agents, secret investigative techniques and other classified The 1993 World Trade Center bombing information. The judge occasionally sealed cases also raised serious national security evidence, did not permit evidence to be concerns that had to be weighed against the public and press's rights of access.

124 Once again, the federal judge was able to courtroom when the trial was suspended. strike that balance without any leak of There was a great deal of speculation in national security information. the press about the trial. But because it was closed, no informed opinions about All of these examples of successful federal the strength of the government's case court prosecutions should reassure the could be formed. Bush Administration that it too can apply the First Amendment right of access to its After the war, when Harry Truman was military tribunals without threatening President, his Attorney General, Tom national security. By issuing regulations Clark, decided to open the files of the that give the tribunals more discretion secret trial. It turned out that the two than the First Amendment permits and by saboteurs who were given lengthy specifically stating that the Constitution sentences, George Dasch and Ernst does not apply in the tribunals, the Burger, hated the Nazi regime and had left President may repeat some of the Germany expressly determined to expose mistakes of his predecessors in the use of the plot. Soon after they landed on the such tribunals. During the Civil War, for beach in Amagansett, Long Island, Dasch example, secret military tribunals, rather and Burger phoned the FBI in New York than civilian courts, were used as part of a They went to Hoover's Washington broader campaign of the Lincoln office, revealed the plot in full and Administration to quash public dissent explained how and why they had led the and to try to punish civilians who real saboteurs into the trap. criticized the federal government or the William Turner, one of Hoover's veteran war. FBI agents, later wrote: "Ironically, A military tribunal was used again in 1942 [Dasch] is most probably an authentic by President Franklin Roosevelt to try American war hero, responsible for saving eight German saboteurs who plotted many lives. But fate had made him a terrorist attacks strikingly similar to Al threat to the FBI's public image." As Qaeda's in 2001. The Nazis planned to Lloyd Cutler, former White House destroy key railroad installations, counsel under Bill Clinton and a junior aluminum factories, power plants, bridges member of the prosecution team, and canal locks, plus targets such as explained it to the Atlanta Journal- Jewish-owned department stores. That Constitution in 1980, "I think the major case more than any other points up how reason the trial was kept secret, was the secrecy breeds corruption and contempt fact that it wasn't the FBI that had done of justice. All of the saboteurs were found the real work in capturing the Nazis." Had guilty; six were executed and two were the trial been open, the military officials sentenced to life in prison. who presided over the tribunal would have been hard pressed to convict Dasch J. Edgar Hoover, the head of the FBI, was and Burger. But it heralded for his swift capture of the was not, and the damage to these two men Germans. The military proceedings were was devastating. kept so secret that prior to the start of the According to a series of articles published trial officials would confirm neither the in 1980 by the Journal-Constitution, two exact location nor the start date of the years after Dasch and Burger arrived in trial. Once it began there were only terse prison, there was a not because the statements after each day's proceedings prisoners objected to being housed with and a single visit by the press to the Nazis and Dasch was almost thrown off

125 the roof of the penitentiary. Dasch was officials forbidden even from confirming then transferred to solitary confinement at that cases exist. Leavenworth, Kansas, forbidden to have Since September 11, civil rights groups even a pencil. In April 1948 both Dasch and news organizations have sued the and Burger were granted executive federal government for blocking press and clemency and deported. Dasch, forced to public access to immigration proceedings return to Germany, was branded both a and detentions. In one case, decided on Nazi criminal and a traitor to the April 3, in which the Detroit Free Press fatherland in the magazine Der Stem. His and Ann Arbor News filed suit seeking hometown paper, in a front-page article, access to deportation proceedings of a Dasch dubbed him "The Judas of Speyer." Detroit-area Muslim leader, the court held tried to return to the United States many that the government had violated the First lifetime but was never times during his Amendment by excluding the press and in Germany in permitted to. He died public. On March 6 another suit was 1991. brought by the New Jersey Civil Liberties History shows that giving unfettered Union, the Center for Constitutional discretion to the executive branch to Rights and other legal groups challenging capture, prosecute and try defendants the government's closed immigration without public scrutiny is likely to yield hearings; and in late February a federal results that will be questioned for years to judge in California declined to permit civil come and set a precedent for further rights groups to obtain a list of Afghan incursions on individual liberties. Whether detainees being held at Guantanamo Bay, the Administration or the officers Cuba. tribunals will presiding over the military The State Department has repeatedly First Amendment comply with criticized secret military tribunals in other by the Supreme requirements affirmed countries, and with good reason. The Court remains an open question, but so public policy rationale the Supreme Court has sent is far the message the President has used in expanding the First not have to. Since September that he does Amendment right of access is that just has pursued a 11, the Bush Administration results come from openness. Secrecy does secretive legal strategy. The Immigration little more than cloak potential corruption, Service continues to and Naturalization foment distrust and prevent the secretly hundreds of aliens rounded detain community from seeing justice done. The 11 whose links to the up after September President, even in a time of war, may not plot, if any, have not been terrorist alter that equation by simply changing the explained. Without public announcement, forum in which defendants are tried from for example, on September 21, 2001, the courts to tribunals. If asked, the Supreme country's chief immigration judge, Michael Court should find that the public and Creppy, who is appointed by the Attorney press have a First Amendment right of General and comes under the executive access to military tribunals as well. branch of government, issued a memorandum ordering that immigration Edward J. Klaris is general counsel of The hearings designated by the Justice New Yorker. Department be kept secret, with court Copyright 0 2002 Gale Group Inc.

126 Supreme Court Blocks Limit on Secret Hearings

The Boston Globe

June 29, 2002

Lyle Denniston

require public hearings in any given case, The Supreme Court took its first action in but nor did it allow the automatic closing the war on terrorism yesterday, showing a of every such hearing. reluctance to restrict the Bush adninistration's wide-ranging use of Instead, Bissell ruled that the news media government authority to deal with the and the public have a right to attend those individuals detained since the Sept. 11 hearings, but could be excluded if the attacks. hearing officer makes findings, one case at a time, that a secret hearing is necessary in In a brief order without explanation, the a particular case to serve the government's justices blocked temporarily a month-old need to continue investigating terrorism. order by a federal judge in Newark that had kept the government from holding The judge refused to postpone his order secret immigration hearings for hundreds to give the Justice Department time to of detainees. appeal. The department then asked the US Court of Appeals for the Third Circuit, in The Justice Department has set up Philadelphia, to block Bissell's order until "special interest" hearings for those held the appeals court could review it. The on immigration charges and being appeals court also refused. detained for investigation of terrorism. But it has not said who among those Administration lawyers, using urgent being held fall within that category and its claims of a threat to the terrorist scope. It has identified no one being held, investigation, then asked the Supreme and has not said when or where any Court to put Bissell's order on hold until hearings have been or would be held. Civil department challenges can be heard on rights groups have said that more than appeal, first in the appeals court and 700 detainees may be affected. perhaps the Supreme Court. All such hearings are closed, and no It is rare for the Supreme Court to step in information about them is to be disclosed and block a lower court order when a publicly, under a Justice Department similar request has been turned down by order issued by the chief immigration all the lower court judges involved. But judge, Michael Creppy. "No visitors, no yesterday the Supreme Court set aside family, and no press" could be admitted, Bissell's order until the appeals court in the order said. Philadelphia has issued a final ruling on After New Jersey news media were barred the government challenge. There apparently was no dissent. from some of those hearings, they obtained an order May 28 from Chief US The Supreme Court has been prepared to District Judge John W. Bissell in Newark act quickly on the variety of challenges to that narrowed the government's authority the Bush administration's response to the to proceed in secret. His order did not terrorist attacks. In the immigration

127 hearings case, the justices acted two days and theft. The issue in his case is the after all of the legal papers on that issue constitutionality of a federal law that bars had been filed. the release on bond of a convicted individual until after their deportation Besides issuing the order delaying the proceeding is completed. prospect of any public immigration hearings in the terrorist probe, the court A federal appeals court ruled that it is yesterday granted review of another unconstitutional to deny release of a immigration dispute that apparently has permanent resident alien. The Justice nothing to do with the war on terror. Department then appealed that ruling to the Supreme Court. A final ruling is That case involves a South Korean who expected next spring. has been permanently admitted to the United States but faces deportation after Copyright D 2002. Dow Jones & being convicted in California of burglary Company, Inc.

128 Ruling Favors Limited Access to 9/11 Data

The New York Times

July 13, 2002

Benjamin Weiser

A federal judge, acknowledging national He also advised plaintiffs' lawyers to begin security concerns, ruled yesterday that the obtaining government security clearances, government should have a say in what is which would allow them to see highly turned over to the families that have sued sensitive data. "They'll want access to airlines, security firms, and others in the information you won't be happy to give aftermath of the Sept. 11 terror attacks. out," the judge told Daniel S. Alter, a lawyer for the government. The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, ordered a Mr. Alter, an assistant United States temporary halt to the progress of the attorney in Manhattan who said he was lawsuits until the government and lawyers representing the Transportation Security for the families come up with a way to Administration, cautioned that there screen information and satisfy the might be materials that were "so sensitive" government's concerns that sensitive that they "can't be released." material is not disclosed. Security clearances for lawyers are unusual In their suits, the families' lawyers have but not unprecedented in sensitive court been seeking records involving airline matters. Such clearances were required, security and other information that could for example, for defense lawyers in last expose the vulnerabilities or failures of the year's embassy bombings trial in New airlines, airports, and government York. agencies. After yesterday's hearing, one plaintiff's Government officials had cited "grave lawyer, John A. Greaves, said he was national security concerns" that satisfied that the process ordered by the information might be disclosed in the judge would not allow the government to pretrial stages of the suits that could make a unilateral decision on what compromise security and public safety. information could be kept from plaintiffs. They said that commercial air carriers and "Our big concern was we don't want them their contractors possessed information to have carte blanche," Mr. Greaves said. about anti-terronst measures that would remain effective only if the measures were He added that decisions would be made closely held, and disclosing them could on a case-by-case basis as to what could "endanger the traveling public." be disclosed. But even with a system in place, he said, he would not hesitate to go In court yesterday, Judge Hellerstein to the judge if he felt the government was agreed, saying the government "has a very being too restnctive. important voice" that should be heard in the case. "It's very clear to me that Before the hearing, Ellen Mariani, whose intervention is appropriate," he said. husband, Louis, also known as Neil, was on the flight that crashed into the south

129 tower of the World Trade Center, said, "I The lawyers told the judge that in many want the truth." cases their clients had not yet decided whether to sue or to take part in the She continued, "I don't feel that anybody federal Victim Compensation should be sifting portions out of my court Fund, which was established as an alternative to lawsuit. If they have nothing to hide, bring litigation. it out into the open." Through the fund, families may be eligible But reached by phone at her New for payments of more than $1 million Hampshire home last night, she said she without the usual delays, costs, or had left court with a much better feeling. challenges of proving a legal case. But "I think he's going to be very fair," she people who sue could theoretically win said of the judge. "I watched him. I higher damages, while facing the typical looked at his eyes. I came out with a much risk of long court battles, or winning better feeling." nothing. She added, "He laid down the rules, the In a separate matter, Judge Hellerstein ground rules, and I didn't think it was said that two plaintiffs who were suing unfair at all." under pseudonyms should use their actual names. The prospect that the parties might soon Their lawyer cited privacy reasons, saying begin to exchange information before the two had received constant calls from trial, a process known as discovery, the news media. But the judge said he prompted lawyers for families who have viewed a lawsuit as a "public event." not yet decided whether to sue to ask that the pace be slowed somewhat. Copyright 0 2002 The New York Times Company

130