Today's Wall Street Journal online has an important opinion piece written by Michael Chertoff, a judge with the 3rd Circuit US Court of Appeals. In it, he notes some of the critical policy and legal issues we as a nation need to debate and decide if we are to effectively defend against terrorism in a coherent way while balancing security against civil liberties.
The positions we take on these matters will have a huge impact on our lives and on the tenor of US democracy over the next months, years and probably decades. Most of us here at Winds of Change aren't lawyers, but we (especially those who are US citizens) have a responsibility to think these matters through carefully and make the difficult tradeoffs that must go into an effective response to the challenges of terrorism abroad in our time.
So ... here are the judge's comments. Your thoughts and responses solicited.
(Note: emphases are mine)
... what does the law say we can do when our enhanced intelligence identifies a potential terrorist threat? What is our authority to incapacitate terrorist suspects? Suppose -- as is often true -- the intelligence is not in a form that can be used in a criminal trial? Does (or should) the law allow detention of the suspect on some other basis? For how long?.... judges cannot and should not be expected to construct a new legal architecture for the war on terror. This involves weighty policy, and that is the domain of Congress and the Executive. Yet, so far, neither has systematically sketched the legal framework for the demands of this new kind of war...
Congress did pass the Patriot Act, updating some significant legal principles, and enacting critical fixes that law enforcement and intelligence agencies had been seeking for years. These included allowing intelligence gathered by one agency to be shared with another, and extending the rules for phone surveillance to "new" technology cell and Internet-based phones. But such ad hoc approaches do not reflect a settled vision of what is required to defend against terror, and what we are prepared to sacrifice . Those with various points of view need to sit down, haggle over differences, then write the laws that will balance our new national security needs with our civil libertarian values.
Some seem to regard intelligence, military, and police activities as having a zero sum relationship with civil liberties. To be sure, one of America's most cherished values is that individual liberty must be protected against the power of the state. History is full of persecutions of the harmless, particularly by governments. At the same time, we are fighting for survival against a dangerous enemy. We cannot forget that we are at war, one our enemy declares is a fight to the death. We can win it only if we do not force our forces to fight in a legal fog, constantly speculating and litigating piecemeal about what the law might be. A murky legal climate only obscures our options, and hamstrings our forces.
Worse, we have failed so far to form a national consensus. When the political branches come together to hammer out a comprehensive legal mandate, they confront the trade-offs between national security and individual liberty. That process of debate and compromise builds the public support that is indispensable to a long-term strategy for coping with terrorism.
Urgently, we need to spell out what the government can do when it discovers through intelligence that a terrorist is in this country. The traditional way to incapacitate dangerous individuals is to apply the criminal justice system. But is that suitable as the exclusive avenue to detain terrorists? Intelligence information, especially foreign intelligence, is highly sensitive -- almost always hearsay inadmissible in criminal courts. Indeed, foreign sources routinely pass us intelligence that they not only will never permit to be aired in open court, but advise us they will publicly deny if ever exposed.
Intelligence information is more broadly gathered, and often less reliable, than the evidence we demand in court. In war, soldiers must act to kill or capture the enemy based on imperfect and fluid information, sometimes just estimates based on intelligence. But this way of using intelligence, critical on the battlefield, does not fit within the contours of our traditional rules for adjudicating criminal charges.
And there is the danger that criminal justice procedures themselves will become tools for the terrorist enemy to turn against us. .... lists of informants obtained from the government in pretrial discovery in the criminal prosecution for the first World Trade Center bombing turned up soon after in a raid of another nest of al Qaeda. Was al Qaeda using it to prepare retribution on pro-American informants, or their families?
There are a host of terrorism-related legal questions that require thought: What should our structure be for incapacitating terror suspects at home? The administration has invoked precedents that allow the president to deal with terrorists within our borders as military combatants. Yet are we comfortable using traditional battlefield rules when we apprehend someone in New York? Or should we explore a third way in dealing with detention of terrorists, such as the English or French models: Should we set up specialized courts to deal with terrorist detentions?
What military actions can we take legally within our own borders? When al Qaeda is conspiring globally, does it make sense to divide legal authority between the FBI and CIA based on whether enemy acts occur at home or abroad? Basic policy questions like this cannot be simply left to the judiciary.
KeWl!
My understanding is that there is some, albeit not perfect, integration between FBI and CIA. Although a slow process, the "walls" are being broken down thanks to the Patriot Act.
As for the detention of suspected terrorists operating within the US, the Judge would like to make his job easily by having a magic cook book recipe. We can't afford to treat suspected terrorists like typical cops-and-robbers. This was evidenced by the recent Kaplan case in Germany, where via their criminal court process, they let the terrorist out on bail never to be heard from again. http://www.dw-world.de/english/0,3367,1432_A_1219941_1_A,00.html
Before we let our fears run away with us, we need to ask two important questions.
1) Could 9-11, our worst terrorist incident, have been stopped using the laws that were in effect at that time? The answer is undeniably - yes. The failure to stop 9-11 was not because of inadequate laws, but because of incompetent institutions. We need to change these institutions first before we can adequately assess whether we need new laws to effectively deal with terrorist threats.
2) Is the destruction of our freedoms a greater danger to the country than terrorism? Again looking at 9-11, the economy suffered significantly from the severity of the terrorist attack but it was not a fatal blow. Even a worse attack, such as a nuclear bomb or a massive anthrax attack would not be fatal to our economy or nation. However, the loss of our freedoms erodes democracy and makes us more vulnerable to tyranny from within. Even today, it's becoming more and more difficult for all of us to travel in public without being observed by video cameras and analysized by face recognition software.
Living in a fishbowl destroys the human spirit. The threat of terrorism can be dealt with psychologically in the same manner that wildebeast deal with the threat of lions, or the way we all deal with the danger of driving, - denial. We live in a big crowd so our chances are good that it won't happen to us. Big brother, on the other hand, watches everyone.
The judge does point out that the Patriot Act was an ad hoc piece of legislation, passed literally overnight in Congress with no real chance to deliberate, and with a number of safeguards in the bill stripped out, apparently in conference with no real procedure.
Talking points:
>> Urgently, we need to spell out what the government can do when it discovers through intelligence that a terrorist is in this country. The traditional way to incapacitate dangerous individuals is to apply the criminal justice system. But is that suitable as the exclusive avenue to detain terrorists? Intelligence information, especially foreign intelligence, is highly sensitive -- almost always hearsay inadmissible in criminal courts. ...
And there is the danger that criminal justice procedures themselves will become tools for the terrorist enemy to turn against us. .... Should we set up specialized courts to deal with terrorist detentions?
We've already been down that road. ex parte Quirin is the 1942 case in which Nazi spies, landed in this country, were removed from criminal courts and tried by a military commission (a tribunal), a process upheld by the Supreme Court -- though the Court did want to retain oversight over the process, even if silent.
Also, this kind of "intelligence" being used against us -- that is, informants, information and that being revealed during the discovery phase of pretrial -- is something that courts routinely protect. City police departments can protect confidential informants' identities (albeit through very complicated evidentiary procedures). Defense counsel might not get access to those, and even if they do, state law (e.g., California) will provide criminal penalties if they so much as breathe that to their clients.
>>Basic policy questions like this cannot be simply left to the judiciary.
In fact, the Federal courts cannot decide "political" (i.e., policy) questions, talk-radio folklore to the contrary. And they tend to defer to the military in wartime -- the legal doctrine is inter armas silent leges (in war the law is silent) -- unless presented with a clear violation of either the Constitution or of Federal courts' jurisdiction. The only defeats for the military -- ex parte Milligan (1866) and Duncan v. Kahanamoku (WWII period) -- were where US civilians were tried by military courts in US territory where Federal courts were open for business.
It isn't as simple as they make out, but it is possible to apply either criminal or military law -- as they have worked all along -- and not compromise either US security or civil liberties. We got through a civil war and two world wars without repealing the Constitution or contravening international law. We don't have to kick the game board over now simply because the Administration can't be bothered with process.
It's worth re-reading Chief Justice Rehnquist's All the Laws but One. He seems to assert that the courts should defer to the military, but not surrender to it. Another source worth a look is Mark Neely's The Fate of Liberty, about the tension between civil liberties and wartime security in a supreme crisis, the Civil War. (The Lincoln Administration may have suspended habeas corpus but didn't make torture a state policy). That crisis sundered the Union, cost us over half a million lives (just the one clash at Antietam took more American life than 9-11) but still didn't cause us to abandon our liberties.
"The reason that the homeland-security business is miscast is that the goal of protecting us from the terrorists is simply impossible. There are too many targets. An attempt to protect them a) will not succeed; and b) will set into motion restrictions on the American Way of Life that are themselves an objective of the enemy. It does not do, to countenance the threat of being killed, to commit suicide."
--William F. Buckley, National Review, Dec. 14, 2001
Bob, what part of legal precedent do you think should / does cover Jose Padilla? And why do you think this judge feels that the Executive and Legislative branches haven't clarified policy &/or law sufficiently?
Thinking some more about the points made above.
Re: the Civil War as precedent, it's certainly true that many more were killed over those years than in the 9/11 attack. And it also seems to be the case that Lincoln's suspension of habeas corpus was limited in time and affect.
I'm not sure how far to take that as a model for us today, however. I don't have time to do serious research today on the issue of casualties, but a quick look through the references I have right to hand suggests several differences that might make the Civil War a poor parallel to our situation today. First, most of the casualties - I believe an overwhelming percentage - were soldiers, not civilians, and many died over time from wounds and lack of antibiotics. Second, with the possible exception of Sherman's march to the sea, civilian populations were scarcely terrorized ... and even in that case, people had lots of time to move away from the path of the army if they chose. Not easy, necessarily, but possible. Above all, they knew who the oncoming army were, that army was uniformed and organized, and their methods were mainly directed at things (burning crops, confiscating horses) rather than people. And, finally, the fact that the Civil War was an army-on-army (force on force) conflict meant that there were authorities who could (and eventually did) surrender, ending the conflict.
Contrast that with our situation today. Terrorists intend terror and casualties among civilians, they strike without warning, they are definitely not in uniform or otherwise easily identified, and it will not be easy to tell when hostilities are finally over.
Finally - and in my view most critically - there is the issue of WMD. We have grown compacent, I fear, since no successful 2nd attack has been accomplished on US soil after 9/11. Attempts and plans have been made, however - more than one.
The proliferation of WMD materials and means, if not actual weaponry, means that a successful second attack could be disastrous at many levels: in terms of loss of life, economic impact, psychological terror, contamination by biological, chemical or radiological materials. Multiple Islamacist terror leaders have indicated their intent to use such weapons and materials if they can.
At some point, "more" becomes "different in kind". I submit this is the case when terror networks intersect with WMDs. And that means that our previous precedents are of limited applicability to the issues we face today. Not "no applicability" ... but we had IMO better take the differences into account when we decide how to balance security with civil liberties during this time.
As always, other thoughts welcomed !!
Our biggest problem is overseas not here. Carrying the war to terrorists, their tribes, countries and supporters is far better than cutting our liberties here at home. That said, we still need to consider what we need to do about purely domestic terrorists, but I think that lefty patriot is right that this is more a procedural than a legal issue. Further, the simple fact is that if someone wants to kill you strongly enough, the only sure defense is to kill him first. While this might work against Islamic extremists, it obviously cannot work against a McVey or Unibomber.
lefty patriot cynically argues that a few tens or hundreds of thousands killed and billions of dollars damage is absorbable and a small price to pay to retain our liberties.
bob harmon appears to argue for the status quo ante and correctly observes that the Department of Homeland Security is a tool poorly suited to its task.
Robin Burk is clearly beginning to get a handle on things when she points out
At some point, "more" becomes "different in kind". I submit this is the case when terror networks intersect with WMDs.
And Oscar sums up by pointing out the wisdom in the forward strategy used by the present administration and which has not been endorsed by Mr. Kerry.
My own conclusion from all of this is that the cost of a generation-long or multi-generation-long conflict will be more than the nation can bear.
While I cannot be as knowledgeable as some of the previous commenters, I would like to put my two cents in.
The judge in asking the congress to make policy is making a request that will not be fulfiled except in very piecemeal fashion. The laws needed will go to new ground in which there is very little guidelines as to what is acceptable or effective. The result is the political animals of Washington DC will shy away from this. It is in effective the Tar Baby of Uncle Remus. No one wants to be the first to smack the Tar Baby, because everone else will critasize the first one. Only when the problem becomes the 500 pound gorilla in the parlor will it be preferable to act, rather than procrastinate.
An Old Fogey in the Desert
Again, a few rejoinders.
Robin specifically asks what precedents should apply. There's three different cases before the Supreme court right now, each different facets of the single detention question:
Guantánamo cases (al-Odah et al) are about foreign nationals held overseas. A case called Johnson v. Eisentrager -- German nationals tried by a US court in Nanking in 1945 -- is on point. Also Application of Yamashita (1946).
Hamdi v. Rumsfeld. A US citizen picked up in a theater of war. The Civil War's Prize Cases may apply, though the issue is jurisdiction: US Federal courts don't have it, but US military law may.
Also a bizarre case, Madsen v. Kinsella. Civilian courts weren’t available when Mrs. Madsen, a U.S. military dependent in occupied Germany, murdered her husband in their quarters and faced a military commission (not a court-martial, as would have happened to Lt. Madsen if he had murdered her instead) on charges of violating the then-current German law against murder. Just as well for Mrs. Madsen that she faced a U.S. military court and not a German civilian one, as German practice in 1941 would have involved the longstanding method of death by beheading for civil murder cases.
But I digress. Now as to Robin's question on Rumsfeld v. Padilla, which, unlike the other cases, involves a US citizen arrested in the US for offenses in a theater of war. Cases on point -- I've argued this one (for the Gov't) in mock court -- include:
- ex parte Milligan (1866). US citizen, in Civil War Indiana, condemned by a US Army tribunal. Supreme Ct said no, not when US courts are in session in that district.
- ex parte Quirin (1942). Several German spies picked up in US territory, including one US citizen. Tried and convicted by a US military court; Supreme Ct said this was permissible but that the high court still retained oversight on fundamental constitutional issues.
- Colepaugh v. Looney (1956). Another German spy (US born, e.g., like John Walker Lindh) arrested on US soil, condemned by a military court, sent to Leavenworth. Supreme court said he had no right to a civilian treason trial.
- Youngstown Sheet & Tube (1952). The Supreme Court ruled that the President's powers as Commander in Chief are not unlimited. Rehnquist was clerking for Justice Robt. Jackson during this period.
What is unprecedented is the fact that the Gov't seems disinclined to try Mr. Padilla, just hold him indefinitely in the brig. The case on point may be Korematsu v. US (1944) that held that, given compelling wartime necessity, the Gov't could hold people without trial. There's considerable angry dissent in the decision that could lend itself to Mr. Padilla's case, as well as a brief in his case -- from Fred Korematsu.
Fascinating.
“... every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. ... To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
—Alexander Hamilton, The Federalist, No. 78
In reply to Dave's comment about the status quo pro ante, I should add a little footnote: the reason we quote court cases as if they were law is because the English common-law system is rather unique in that regard. Judges do not merely apply statutes but interpret them, and the interpretations become part of the guiding common law. We went the English one better by rooting that common law and those statutes in a written Constitution, and, further, one that set up three branches of government – legislative, executive and judicial – to separately write, apply and interpret that law.
The courts’ role is in fact not to create policy but to identify those laws or executive acts that contravene that Constitution.
That is the status quo para bellum, and it goes back in an unbroken line to the Great Charter. It has survived threats from the Soviet Union, Nazi Germany, Imperial Germany, and the Confederate States of America. There's really no need for us, ourselves, to kick it over.
“The warmest friends and the best supporters the Constitution has, do not contend that it is free from imperfections … the remedy must come hereafter .. I do not think we are more inspired, have more wisdom, or possess more virtue than those who will come after us.”
—George Washington to Bushrod Washington, private letter, Nov. 10, 1787
Oh, and a sidebar comment to Robin, who noted that: "with the possible exception of Sherman's march to the sea, civilian populations were scarcely terrorized ... and even in that case, people had lots of time to move away from the path of the army if they chose. ... the Civil War was an army-on-army (force on force) conflict meant that there were authorities who could (and eventually did) surrender, ending the conflict."
Not entirely true, and it has a bearing on the current war and this thread. Kansas and Missouri was the scene of a vicious local war between unionist and rebel militias, guerillas ("bushwhackers") and out-and-out psychopaths like Bloody Bill Anderson and William Quantrell. Whole populations rounded up and put in camps (including Truman's grandmother) or run off. (See Black Flag: Guerrilla Warfare on the Western Border, 1861-1865, by Thomas Goodrich as one source).
Elsewhere, the US had to deal with occupation duties in the South, a large fifth column in the Northern states, rebel spies and saboteurs in the North (e.g., the St. Albans, VT raid), irregulars like the Partisan Rangers behind Union lines, and privateers operating offshore. Much of our case law, pleaded this spring in the Supreme Court, comes from this period.
Also -- note "April 1865: The Month That Saved America" by Jay Winik -- that the rebels did discuss going to the hills and opening a guerilla war. They didn't, though former Gen. Bedford Forrest wound up as head of a gang known as the KKK, which persisted through the occupation years.
A lot of this represents either useful case law, or unfinished issues. But it was a big and messy war.
Bob Harmon:
My observation was not intended to be disparaging since I'm in substantial agreement with your point. FWIW my own opinion as to why the administration is acting as it is WRT both Padilla and the Guantanamo detainees is not because of any further intelligence value they may have. After all this time such intelligence must certainly be minimal. Further, any dangers that Padilla and the other detainees might present could certainly be handled by trying them before a military tribunal. Rather I believe that the administration doesn't like the political implications of any of the available options and doesn't really know what to do. I think they're underestimating the amount of damage this course of action is causing.
Dave, I recognized your comments as basically parallel to mine. My rejoinder was more in the nature of a concurring opinion: specifically, I did want to make a point to the general audience on the nature of rule of law, in wartime.
You're right: the Administration probably doesn't know what to do. It's becoming increasingly obvious that they either can't be bothered with -- or seem unable to -- construct a proper case against any of the detainees in the brig.
What is becoming apparent is that the Administration did approve something that should have been a very narrow interrogation of very key al-Qaeda figures -- e.g., Khaled Sheikh Mohammed -- and made it open season on anyone in detention in Iraq, applicable by any thug in uniform or under contract.
It's all very sloppy. Discipline may erode under wartime conditions but if you throw it away to begin with -- !
In any event, we do seem in agreement, generally, but we can always have variations on a theme. That is the nature of my "rejoinders."
lefty patriot: "Could 9-11 ... have been stopped ... ? The answer is undeniably - yes"
I wrote about this before, and the crux is that we had prevented other 9/11s before. If the agencies and systems in place functioned perfectly we would have only delayed 9/11 because we still would not have been on a footing and in a mindset that would have pushed us to eliminate the threat. All the efforts to find the silver bullet, the scape goat that missed the clues evades the real question, and that is what would it take, next time, to recognize a threat and deal with it effectively? It was our failure to take al-Qaeda at face value and follow up on their declaration of war that allowed 9/11 to happen.
lefty patriot: "Even a worse attack, such as a nuclear bomb or a massive anthrax attack would not be fatal to our economy or nation"
I do not share your absolute confidence in this. On 9/11 we lost less than a half dozen office buildings. Yes, they were large, but if you take the economic impact their loss caused and extrapolate it to loosing an entire city, the idea is staggering. Plus, it won't be one city, because terrorism doesn't work that way. If Chicago ceases to exist tomorrow, what do you think happens in Dallas the next day? How many captains of industry are going to cash out, load up the family in the minivan and head out to the country? Not only do we then see the job loss, the productivity loss, but also the loss of property value, the collapse of the commercial insurance industry, etc.. Let's say they get the device into Chicago on a train, so all rail gets shut down until we figure out how to make it safe. Localized shortages follow. And then the backlash from paranoia. If you are truly concerned about civil liberties just wait what will happen if we fail to intercept the next big one. No, it might not destroy the country, but a single large-scale event will change America into nothing like it is today and very well may set into motion internal forces that eventually do.
We are seeing an undertone in a lot of these discussions:
(1) that 9/11 was somehow preventable if we had been able to discard the 4th, 5th and 6th Amendments, or could torture suspects at will, or both. That assumes that torture can produce truth and not simply what the torturers wish to hear.
(2) that another major event will transform this country. Sure, it might, in an external sense: this country emerged from the Civil War with a profoundly different sense of its being a nation, and with three major Constitutional amendments. That's a very long way from us, of our own volition, destroying our founding document.
I sense that some out there are awaiting the next event as a Reichstag Fire, an opportunity to make some changes and not for the better. The next event is not known but this sense is already there.
"The Third Republic was dead. It had committed suicide." -- William Shirer
Bob,
I think submandave's point was precisely the opposite: that unless the problem is addressed at the source, abroad, NO domestic measures will prevent the next 9/11. At best, they would delay it. This strikes me as a sound and important point.
As for the changed nature of the USA, again I thought submandave's arguments were solid. His description of the economic effects were a sound rejoinder, I thought. And those of us who remember the atmosphere post 9/11 and note the mounting frustrations and acrimony of the past 2 years... no, I don't know what would happen if Chicago was nuked, but I don't think it would be good. And I'm not as convinced as you are that the center would hold.
The first line of prevention to head that off is to play offense and leave the enemy so off-balance that pulling off such an attack is not thinkable or even possible. At least, that strikes me as the essence of submandave's arguments - and if so, I concur.
Bob:
That's a very long way from us, of our own volition, destroying our founding document.
Depression followed by World War II followed by 40 years of Cold War has already effectively destroyed our founding document. How else to explain the idea that growing tomatoes in your backyard is interstate commerce?
A multi-generational conflict—even a low-level multi-generational conflict—is certain to effect sweeping changes in what we think the Constitution means. I'd prefer that this not happen but I don't see the national unity and will for the kinds of actions that would shorten the conflict.
http://www.nationalreview.com/thecorner/2002_06_16_corner-archive.asp#85180657
Here's a brief amplification:
The concept would require enactment of new criminal legislation which applies only to resident AND non-resident aliens (i.e., extra-territorial jurisdiction could be asserted), and need not be confined to terrorism. There could be a Foreign Terrorist Act, a Foreign Contraband Act (drug-smuggling), etc., all part of a new federal code with its own rules of evidence, procedure, etc. Which would include trial only by a court, not by a jury.
While there would be complications when a given investigation turns up citizen involvement, those would be much easier to deal with once the major part of the problem - full constitutional protection for resident aliens - is adddressed.
We wouldn't need new courts. Existing administrative law judges would handle ordinary immigration problems. Existing federal judges would hear most charges brought by Department of Homeland Security prosecutors. The proposed special military tribunals would try extraordinary cases.
Many other issues would have to be resolved (such as getting the Supreme Court to overturn 100+ year-old precedents), but IMO it's doable.
Tom, what specifically do you envision re: "full constitutional protection for resident aliens"? Do you intend that they receive all the protective rights of a US citizen?
Given the push by some to give permanent residency to all aliens currently in the country, I would find that a stretch way too far, myself. Rights must go along with responsibilities and commitments, and by definition resident aliens have not bound themselves to the Constitution ...
Bob, in response to your points re: the Civil War, it is probably a relevant nuance that events in Kansas, at least, occurred IIRC while Kansas was still a territory, not a state. Missouri, of course, was the subject of the highly-disputed Compromise which pleased no one ... not a legal status issue, but one reason feelings ran high there.
It would be helpful if you could take the time to give the gist / impact of some of the court precedents you cite by name -- how do they bear on Padilla, for instance?
Robin,
You misread my post.
Right now resident aliens (non-citizens residing in the US, whether they are legal or illegal immigrants) get the same due process rights as citizens, save in immigration proceedings which lack jurisdiction over citizens. I contend the 100+ year-old Supreme Court rulings on this point should be changed, and the Supreme Court given a nudge on this, via Congressional legislation creating a whole Title of the US Code (Title 18 is the federal criminal code) pertaining to all aliens, non-resident as well as resident.
This new Title of the USC would spell out whatever due process rights aliens get when charged with offenses under the Title. Trial by jury, right to confront witnesses, self-incrimination privilege, etc., would not be among those due process rights.
Thanks for clarifying that, Tom.
IMO the sort of mechanisms Tom is describing - or others that might address these issues in different ways - are needed.
I'm not convinced by Lefty Patriot's assertion that the laws in place were likely to have been effective in preventing 9/11 or new attacks. The steps needed for a FISA court review to puncture the FBI / CIA wall are time consuming and given Gorelick's direction, I suspect that it would have been a random lucky strike if it had. But worse, the sort of pattern matching that - in retrospect - would have made the threat clear is precisely what one would need to have done before approaching the FISA court for approval. Not a recipe for successful prevention IMO.
So we have two issues, related but different: how can we allow authorities to reasonably have a chance to identify and disrupt attacks before they occur, OTOH, and what do we do with the planners / attackers when they are found OTOH.
The judge's essay (in parts I edited out, alas) specifically notes that intelligence info seldom rises to the quality we require in normal criminal trials. That's appropriate for normal crimes, as the marginal risk to society of letting a criminal go free is balanced by the value of civil liberties.
But when what is at stake is much much larger than a single crime, I tend to agree with the judge and others that we need accountable and delimited ways to act on lesser levels of certainty. Where to draw those lines, and how to deal with those who are suspected or apprehended on such a basis, is the issue wrt which our nation needs to develop some level of consensus, I think.
I also disagree with LP's suggestion that these concerns constitute "letting our fears run away with us". It is simply prudent to measure (insofar as we are able) the various risks we face and then to adopt a well-considered approach to risk mitigation. There Ain't No Such Thing As A Free Lunch (as I tell my computer science & engineering students), and protecting against one risk usually entails taking some different risk. Choosing the right balance among risks is not a hysterical, fear-driven reaction, it's the prudent strategy of responsible citizens IMO.
Robin Burk:
Have you noticed that a basic divide in positions on the war in Iraq and the War on Terror generally appears to be risk assessment? Those who believe that repeated terrorist attacks in this country are a greater threat than doing nothing tend to favor a more aggressive War on Terror; those who believe that our own government is a greater threat to our well-being than foreign terrorists tend to favor doing nothing.
Robin, you asked about how the precedents might apply to Padilla. ex parte Milligan means, in this context, that some Federal court would have jurisdiction, since Padilla was arrested in a Federal district in Illinois, on a writ from the Southern District of N.Y. -- not necessarily a military court, since being in a brig is a predicate to trial or release. Even the military rules require a trial at some point.
ex parte Quirin is on point in that Herbert Haupt, like Padilla, entered US territory with (alleged) orders to wreak sabotage, and Quirin holds that a US military court might very well have jurisdiction if the person is a combatant, unlike Milligan, who simply ran his mouth.
Colepaugh is even more similar in that both Colepaugh and Padilla are US-born citizens who went abroad in service of the enemy. He wanted a treason trial in civilian court and didn't get it.
Youngstown Sheet & Tube simply means that no Commander in Chief can simply decree wartime powers beyond a certain point. Tom H. is right in this regard, that any extraordinary courts would have to come by Congressional enactment, "Art. I" courts like courts-martial, rather than the Federal courts authorized under Art. III.
US citizenship is the crux, since some rights (esp. 14th Am.) are specific to citizens, others to all (e.g., "no one shall be denied..." &c.). Further, immigration and aliens are expressly a Federal, not State, issue, which is how the 14th Am. usually comes in.
As for Lefty Patriot and other posts on the efficacy of Patriot-type legislation, the Patriot Act seemed to have been a wish list left over from the Clinton/Bush I Justice Departments, notably those sections on "domestic terrorism," something not at issue in 9-11 but on point in Oklahoma City. None of it seems entirely apt, while Tom H. is describing a more exact approach. I'm not sure I concur -- the Foreign Intelligence Surveillance Act already provided the US with separate court processes and powers, and the Bush II administration seemed somewhat disinclined to play ball with the FISA court.
Tom: ex parte Quirin probably gives you all the ammunition you need, since the "100+ year precedents" were partly eclipsed there. Milligan seems to have been an anomaly. Quirin, Colepaugh, Yamashita and Eisentrager all give you plenty of leverage, and Youngstown merely suggests that Bush needs to get Congressional authority, which would be a smart idea anyway.
Thanks, Bob! I promise to use plain English rather than compsci jargon if you'll spell out what cases were about LOL. One of the great things about the blogosphere is the ability to tap into the expertise and point of view of others ... Winds of Change is (we hope) a place that encourages useful dialogue.
I'll disagree with you a bit on the FISA court, however, since the cumbersome proceedings needed to invoke it's powers create a substantial practical, if not legal, barrier to the rapid response needed in likely cases of terror attack planning / execution in the US.
This has been posted for more than two years:Peacetime Civil Liberties and Wartime National Security
That site is a good one. One site it cross references is the Cornell law site at
http://www.law.cornell.edu/background/warpower/
with a good set of hyperlinks to, e.g., the war power statute in the US Code. (This site generally has the full US Code and Supreme Court decisions; it's a very good, free website.)
Also the UN High Commissioner on Human Rights has an archive of pertinent documents -- including the Geneva Conventions -- at
http://www.unhchr.ch/html/intlinst.htm
Joe,thank you for clarifying my position. While I tend to come out on the right side of the equation, I am certainly no survival nut waiting for everything to get worse and enact draconian laws. I do, however, try to be pragmatic and I am concerned what social effect another large attack will have. In 1941 Pearl Harbor was enough to confiscate property and intern persons of Japanese descent. For anyone to dismiss possibly more dire effects from an geometrically more deadly and terrifying attack seems to me to be Pollyanish.
To Joe and submandave,
The issue is not dismissing the danger of the next attack. The issue is whether any preventive measures (1) even address the problem, (2) represent other agendas (e.g., the "domestic terrorism" provisions of the Patriot Act, not at issue on 9-11), and (3) whether any new measures will represent a Maginot line of thinking, which is to say, address the wrong vector of attack AND leave us more complacent.
It's interesting that after Pearl Harbor the internments took place on the West Coast. Hawaii, more immediately in danger, did not lock up its Americans of Asian ancestry. And the people most in the front line of domestic security -- Attorney General Francis Biddle; J. Edgar Hoover -- did not think the internments either apt or wise.
And in any event, who are we going to entrust with these vast new powers? This administration, whose conduct already suggests that they will abuse any suspect but the right ones? A Clinton or Kerry Administration, who no doubt will have their own scores to settle?
"O Liberty! Liberty! how many crimes are committed in thy name!" -- Mme. Roland, at her execution
Bob, we may in violent agreement on this, but I question the relevancy of your question, "who[m] are we going to entrust with these vast new powers?", as it relates to any specific administration. I don't agree with your generalization that the current one "will abuse any suspect but the right ones" and feel such a comment, besides being inaccaure and reactionary, only serves to discredit any value your comments have in the eyes of those not inherently hostile to Bush et. al. In the question of war powers, it matters not to me who the current resident of 1600PA is, my concern is only that they be empowered with the tools necessary for the shortest period of time needed. As for my personal preference, I want a President whom I believe is committed to eliminating (not managing) the terrorist threat and in whom I have confidence that they will do what they say.
Re. the WWII interments and Hawaii, I wonder if the status of Hawaii as a predominantly a military-centric territory perhaps was a factor in any determination of relative risk (i.e. easier to keep an eye on "them"). Not sure if your point is 100% accurate, but will not dispute it as I haven't researched it. Could make for an informative thesis, though.
Finally, though, while nothing can ever be guaranteed, I do feel there is a preventative measure that does ensure the best chance of stopping a repeat. That is called victory. A dead terrorist is 100% guaranteed to not complete an attack. Strong, decisive offensive action to eliminate terrorists, eliminate their funding and address the political climates that breed them is the only logical option. While I don't think I am as inclined to instictively mistrust government motivations as you seem to be, I do think that as long as there is a credible terrorist threat there will always be a better chance for someone to use it for their own purposes. As such, I stand by my position that the best way to protect civil liberties is to work together and minimize and/or eliminate that threat as quickly as possible.
Actually, the reason Hoover and Biddle opposed the internment of the Japanese was because they were not privy to the Magic decryptions, arguably the most important secret of the war. The Japanese in the Territory of Hawaii were interned at a much smaller rate than those on the West Coast because of the more integrated society. Many, if not most Japanese in Hawaii knew, and were vouched for, by 'regular' people. The ones interned from Hawaii were those either known by their neighbors to be supporters of the Axis or those who were identified by the code-breakers.
We've seen the mentions of Lincoln's suspension of Habeus Corpus.
No one has seen fit to mention Roosevelt's practice of locking a bunch of people up in mental institutions. With the postwar changes in mental illness laws, locking people in looney bins is no longer practicable. Under Roosevelt, nobody would have ever heard of Padilla, he would have been quietly locked up in an institution.
WRT the bad guys we've got locked up in Gitmo and Abu Grhaib, it's quite simple. Enemy combatants who are caught out of uniform have no rights. They get caught, they have always been interrogated, then shot. Go back to that simple process and end the problem.
Peter more or less illustrates a point that submandave raised. Doesn't matter if the Administration is Democrat or Republican, and we've noted that some of the worst wartime abuses took place under Wilson and FDR. The "Anti-Terrorism and Effective Death Penalty Act" of 1996 passed during a Democratic administration, a period in which the 4th Amendment -- search & seizure &c. -- crumbled in the name of the War on Drugs (we lost). Janet Reno made her name as district attorney in Dade County, FL in a series of molestation trials straight out of Kafka (don't take my word for it, read Dorothy Rabinowitz' exposés in the Wall Street Journal on Reno's adventures).
submandave: One dynamic in wartime Hawaii was the fact that military courts ran the territory and tried people for any offense. You can get a flavor of this if you look up Duncan v. Kahanamoku (1946): Kahanamoku was Duke Paoa Kahanamoku, Sheriff of the City and County of Honolulu, and the two plaintiffs were white -- convicted by military tribunals of (1) embezzlement and (2) brawling with a sentry in a shipyard. The Supreme Court thought this was a bit much given that the Territory had civilian courts open for business. Of course, the Japanese-Americans there went more or less untroubled: the whole territory was on lockdown.
Oh, and Peter: the people we're holding in Gitmo and Abu Ghraib include possible AQ, but also Taliban soldiers (a nation-state, though not able to afford uniforms as nice as ours), Iraqi soldiers, Iraqi terrorist suspects, Iraqi criminal suspects, and assorted other nationalities. We've tended to shoot illegal combatants after (1) we determined that that's what they indeed were and (2) held a duly convened tribunal. So it's not simply a matter of blowing them all away.
submandave, one more point: it's true a dead terrorist can't attack. I've lived in countries, like Guatemala, where dead "terrorists" were named as such because they were trade-union activists or university professors or opposition-party candidates or native-tribe members who were simply literate (i.e., a threat to the state). Killing them didn't stop the rebels but did guarantee that the state became a terrorist in its own right.
Bob: the thread goes ever on ...
While I understand your experiences with expost facto "terrorists" and share your desire that we not go down that road, I emphasize that in places like Guatemala, Argentina, et. al. they have neither the underlying institutions nor traditions we enjoy here that make such abuses both rarer and more easilly exposed and remedied. As such, I think that fact bolsters my position of taking a hard line to prevent domestic actions that could indirectly threaten these institutions and traditions.
submandave, it is true their traditions are different; there's a fascinating series of books by Peruvian economist Hernando de Soto ("The Mystery of Capital," etc.) to the effect that Third World countries hobble their economies by (1) no rule of law to protect property and (2) making such a thicket of permits (e.g., 63 in his study, to set up a small business in Peru) that enterpreneurs are either stifled or turn to an underground economy.
However, the reason Guatemala doesn't have our kind of traditions is partly our fault. Their last elected government went down in 1954 in a US-instigated coup d'état, in the name of US national security. Their next civilian government was 31 years later. The civil war of the 1970s and 80s took 200,000 lives and drove 1M into exile, out of 7M population. (Most of it the army's work -- and that army was partly trained at Ft. Benning, GA).
And they're still shaky -- one former military dictator still runs a major conservative party. So, the lesson is not only do our own traditions protect us -- from this -- but it's a good idea if you avoid breaking the wrong things in the pursuit of the enemy. You remove a tumor like al-Qaeda with a scalpel, not a sledgehammer.