EVENTS

Date:	Wednesday, December 17, 2003
Time:	10:00 AM -- 12:00 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

December 2003
Civil Liberties and the War on Terror

Two years after the September 11 terrorist attacks, and on the 212th anniversary of the Bill of Rights, America's resolve is again being tested. From the early days of the republic, America has weathered periods of crisis that have tested its fidelity to the Constitution and the rule of law. In light of controversy over the Patriot Act, the detention of American citizens as enemy combatants, and Guantanamo Bay, has the government gone too far? On December 17 at AEI, Michael Chertoff, U.S. Court of Appeals Judge and former head of the Justice Department's Criminal Division; Professor David Cole of Georgetown University; Elisa Massimino of the Lawyers Committee for Human Rights; former U.S. District of Columbia Circuit Judge Patricia Wald;, Professor Ruth Wedgwood of Johns Hopkins University; AEI Visiting Scholar John Yoo, and other former government officials, judges, and law professors engaged in  a roundtable discussion examining these issues.

Barry Sullivan
American Bar Association

In a report issued recently, the commission headed by Governor Coleman talked about the need to protect both security and liberty in these difficult times during which the current threat to security is undoubtedly not a passing phase but, at least for the foreseeable future, a permanent fixture in our national life.  Two weeks ago the Washington Post reminded us that the situation we are in requires more from us than just simply letting the president sail the ship in uncharted circumstances and then grading his performance according to constitutional precedents of another time.  The work of protecting our security is not just the work of the executive branch and the courts; and Congress should be involved in these discussions as well.  

There are five issues that need to be discussed.  The first has to do with transparency of government and access to government information, particularly with regard to those people that were detained after September 11.   The second is what difference does citizenship make in the prosecution of the war on terror? We have at least three categories of people involved: non-citizens captured abroad, citizens captured abroad, and citizens captured here.  The third question involves the judicial process and the Bill of Rights: can the government deny access to possibly exculpatory evidence or witnesses in a federal criminal trial?  Fourth, does the Patriot Act go too far or does it need to be toughened?  The final area has to do with the trials of the old regime in Iraq, an issue that has become more pressing with the capture of Saddam Hussein.

Elisa Massimino
Lawyers Committee for Human Rights

The cases dealing with information about who has been detained since September 11 is only one slice of the larger openness of government question.   There is another piece of this question that I think is often left out-the need for meaningful debate about which of the new security measures will be the most effective in stopping terrorism. The question raised by the Gilmore report asks whether we are being focused and strategic enough in these choices we are making to increase security.  There is also some question as to whether the choices we are making have the potential to backfire and make us less secure.

A recent example of what happens when information on detainees is not made available is the case of a man named Benamar Benatta in New York State.  The gentleman is an Algerian citizen who has been detained since before September 11.  He was labeled a suspected terrorist under this new, post-September 11 approach, was cleared by the FBI, but still remains incarcerated after more than two years.  This is a case that is just coming to light because we did not know he had been arrested and not appointed counsel.

John Yoo
AEI

The FOIA (Freedom of Information Act) case is about immigration and deciding whether the deportation hearings of non-citizens who have overstayed their visas and are here illegally should be closed proceedings.  I believe there is, depending on the case, a sufficient government need to close these proceedings; if the suspect in question is linked to a terrorist organization, that is not necessarily something you would like disclosed in open court because it may compromise your intelligence sources or collection methods.  In the FOIA litigation the real issue is whether the government can seek to close all the immigration proceedings as a systematic matter or whether the government must do it on a case-by-case basis.  In this case the D.C. circuit court upheld the government's right to close the proceedings in a systematic way. 

The FOIA case gets to the heart of why these trials are different than the way that we are accustomed to operating under the criminal justice system.   What the court found and what the FBI proposed was this mosaic theory that every piece of information that the government releases to the public on how it is fighting terrorism can be put together into a mosaic by the other side.  Al Qaeda monitors our government and public sources, and they are able to put together a more coherent picture of our security measures and intelligence methods if there is abundant information in the public domain.

Patricia Wald
Open Society Justice Initiative

There are two cases dealing with this openness issue.  The first, which was not decided by the D.C. circuit, deals with the mass closure of deportation proceedings versus making an individualized decision on each case.  Liberty is always an individual matter, and the notion that you can create and apply broad categories harkens back to the Japanese internment during the Second World War.  The other case, currently pending in the D.C. circuit, deals with the disclosure of the names of the thousands of individuals that were detained after September 11. The district court did grant disclosure of these identities to some degree; the reasoning there was that, even if one in ten cases contains links to terrorist organization, you cannot summarily withhold the names of all ten.  The government eventually did concede that it had to reveal the identities of individuals who were being held pending criminal proceedings.  This number, however, was still considerably small compared to the total number of detainees.  The degree of liberty allowed a suspect is contingent on the circumstances and the details of each case, and decisions as to whether or not to close proceedings should be made on an individual basis.

Ruth Wedgwood
Johns Hopkins University

With regard to the issue of citizenship, the problem is that if you capture an individual on the battlefield in Afghanistan, whether they are citizen, alien, or non-resident alien, are you then obliged to immediately release him?  Should this be a catch and release system in which individuals who are actively fighting against the United States and their allies should be allowed to return to the battlefield after a brief internment? That does not make sense, especially when you are trying to kick al Qaeda and the Taliban out of Afghanistan.  In short, wartime problems are different, so the system must be different. 

The human rights issues are on both sides of the equation here; citizens and non-citizens also have the right not to be victims of terrorism.  When we think about what proportionate response to take, you must weigh the interests of the victims, or the potential victims, as much as the interests of those who have been captured. 

There has been a lot of debate about what types of process should be afforded to people who have been detained as combatants or alleged combatants.  The problem that we have, however, is that there are very few sources of credible human intelligence in the world, particularly about al Qaeda and the little that we know often comes from concerted interview processes of al Qaeda detainees and Taliban detainees.  Al-Farouq, who was under interrogation for ninety days, gave up information on plans to attack embassies in southeast Asia.  Our recent success with Saddam came with people who were caught on the battlefield and subsequently gave up information.  So while it is right that we salute the highest civic ideal, that every person should have his own lawyer immediately upon arrest in peacetime, in wartime the equities are somewhat different.

With regard to the debates surrounding the war on terror, I would agree with Governor Gilmore that there has been very little creative debate or offering of meaningful and feasible alternatives to the current course. I believe it is every expert's duty to explain what they would do that would garner human intelligence in an effective way while also being fairer to the sources of that intelligence. The trouble with lawyers is that the first thing they tell their clients is to keep quiet because talking cannot do you any good. Nobody on any of these panels has ever had a suggestion as to when the lawyer should be appointed, six hours, nine hours, seventy-two days, etc.  We still do not know how long an interrogation takes, so it would be counterproductive to place such an arbitrary limitation on it.

David Cole
Georgetown University Law Center

Citizenship makes all the difference in this question, but it also makes very little difference.  It makes all the difference in terms of the way our government has responded to the war on terrorism. For the most part it has not confronted us with the difficult choice about which of our liberties we're willing to sacrifice in exchange for greater security.  Instead it has said we will sacrifice their liberties for your security, they being foreign nationals, particularly Arabs. This makes sense if you are a responsive government official because foreign nationals are not the electorate.  In the wake of September 11, here in the United States five thousand foreign nationals have been subject to anti-terrorism preventive detention measures.  Virtually none of those five thousand have been charged with anything related to terrorism, none of them have been charged with being a member of al Qaeda, and none of them have been charged with September 11.  Three have been charged with a terrorist crime; of those three, two were acquitted and one was convicted, but even that conviction has been called into serious question by the government's failure to provide exculpatory evidence.

Even given the validity of that one conviction, we have locked up five thousand people because they are immigrants.  This country has seen the most massive campaign of ethnic profiling ever undertaken since the Second World War.  The administration's response is that they target foreign nationals based on the nature of their passport, but if you examine the nature of these passports, they are overwhelmingly from Arab nations.  There is absolutely no evidence that this is an effective way to deal with the problem.  The message is that Americans' rights are not at stake.

There should not be a difference in terms of how we treat foreign nationals and citizens of the United States with respect to basic constitutional rights.  The rights contained in the Bill of Rights are not just reserved to citizens, but to all people.  The right to vote is limited to citizens, but the right to not be locked up arbitrarily is not reserved only to citizens.

Even if people reject this and say there should be a difference, history has shown that the difference is an evanescent one.  That is, what the government does to foreign nationals today is but a precursor of what it will do to citizens tomorrow.  We ought not be reassured when Dick Cheney tells us that a foreign citizen who is suspected of attacking us does not deserve the same rights as a citizen of this country because history has shown that these measures will be applied to United States citizens somewhere down the line.  Every repressive action by the government against citizens, from guilt by association to curbs on the right to engage in subversive speech, started out as an anti-alien measure that was ultimately extended to citizens.  We ought to extend the same rights to foreign nationals that we do to ourselves as a matter of principle, and as a matter of history we ought to do so in our own self-interest.

Michael Chertoff
U.S. Court of Appeals

There are three categories of "citizenship" in play in the war on terrorism.  There are American citizens; immigrants, or people who have come to this country with a view to becoming permanent residents; and alien visitors, who are guests in this country that do not have the right to stay.  It is important to distinguish between the third category and the other two because the third has a much more temporary status.  When we talk about ethnic profiling, the immediate example that comes to mind is the horrendous story of the Japanese internment during World War II.  Roosevelt allowed a round up of citizens of Japanese descent as well as aliens of Japanese descent.  That was a much broader and indefensible position than what is happening today.

With respect to the cases that David was talking about, in every instance except one, the individuals who were rounded up were guilty of either a criminal offense or of overstaying their visa.  These types of people are entitled to be apprehended and deported, and that has been the case since well before September 11.  David's claim is that the government sought aggressively to detain those people and not release them on bail.  Again, in 2001 it is estimated that there were 300,000-400,000 absconders, people who had overstayed their visa, were apprehended, released on bail, and then left and could not be found again.  When you arrest somebody without roots in the community and then release them on bail, there is a material risk that they will not show up for their court appearance.

The real issue was, was the government behaving appropriately in arguing that bail ought to be denied to people who had overstayed their visa pending their deportation because there was some reason to suspect that these people would commit an act of terrorism. That was a suspicion based not on ethnic profiling, but some kind of investigative connection to a terrorist.  For example, in the rental car of one of the hijackers, scraps of paper with telephone numbers were found.  If one of those numbers could be traced back to a location where there were individuals who had overstayed their visas, you would certainly have questions about why it is that a hijacker had this phone number.  It might take a while to sort that matter out, so you would have to ask yourself if you have the legal right to apprehend that person as a violator of the law, should you consent to bail or should you fight bail?

The fact that one individual in this group of approximately seven hundred was "convicted" of being a terrorist is misleading because a number of people were deported, possibly because they had serious connections to terrorist networks.  Just because that information is classified does not mean that there was no evidence that these persons posed a serious threat to our security.  Even if it were true that only a fraction of the people picked up through this lawful process actually posed a danger, would it have been responsible of the administration to take the opposite approach?  If you look at these measures, which are all well within the existing legal tools, they are quite moderate compared to things that have been done in other countries.  A measured dose of careful lawful enforcement can be a protection against a later outcry for a more draconian system that may result from another attack. 

AEI research assistant Andrew Kelly prepared this summary.