John Yoo

With the passing of the second anniversary of the September 11 terrorist attacks and the 212th anniversary of the Bill of Rights, debate continues on whether the Patriot Act violates civil liberties in its attempt to combat terrorism. On December 17, judges, government officials, and law professors debated the controversy surrounding usage of the act to detain and prosecute suspected terrorists.

AEI's John Yoo contended that the government should close proceedings for some deportation hearings involving non-citizens who have overstayed their visas and remain in the country illegally, particularly if the suspects have links to terrorist organizations. The District of Columbia Circuit Court recently ruled that the government can do so on a systematic rather than a case-by-case basis, thereby recognizing, in Yoo's words, that "every piece of information the government releases to the public on how it is fighting terrorism can be put together into a mosaic by the other side." Since al Qaeda monitors U.S. policy, the government must maintain the confidentiality of certain sources and methods that might otherwise endanger the lives of American citizens.

Patricia Wald of the Open Society Justice Initiative promoted a more individualized basis for government openness in these cases. The U.S. Court of Appeals for the District of Columbia Circuit found that withholding the names of detainees constituted a "reasonable" prevention of the terrorists gaining advantage from the information, and the Supreme Court subsequently allowed this ruling to stand over the objections of civil liberties groups. Wald proposed that the government allow the degree of public disclosure to reflect the particular circumstances of each individual case.

Ruth Wedgwood of Johns Hopkins University asserted that since wartime problems differ from those in peacetime, wartime judicial proceedings might also need to differ from their peacetime counterparts. She cited the example of testimony by captured Iraqi combatants leading to the capture of Saddam Hussein-information that would have been far more difficult to obtain if lawyers advised the combatants to remain silent. While the courts must protect the rights of citizens and non-citizens detained for prosecution, they must also keep in mind the right of citizens and non-citizens to not become victims of terrorism. A new method should be developed to help garner the already limited human intelligence while treating such sources in fair manner.

David Cole of Georgetown University warned against the potential sacrifice of foreign liberties for the sake of American security. Of the five thousand foreign nationals detained after September 11, only three have been charged with a terrorist crime. Two were acquitted, and the other received what Cole characterized as a questionable conviction because of the government's failure to provide exculpatory evidence. He also contended that the rights enumerated in the Bill of Rights extend to every person, not just U.S. citizens.

Michael Chertoff of the U.S. Court of Appeals countered Cole's attack on the number of convictions among the post- September 11 detainees. Chertoff noted that in every case except one of those mentioned by Cole, individuals overstayed their visas or committed other violations and that the small number of convictions can be deceiving as many detainees have been deported, potentially due to terrorist connections. Detainees were denied bail strictly due to the suspicion that they might engage in terrorist activity if released. He concluded: "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?"

Despite disagreement as to methods, the panelists agreed that the government must take care to protect civil liberties while doing everything within its power to investigate and thwart terrorist activity.