Panel 4 is entitled: "Freedom and Security: The War on Terror, Civil Liberties, and the Court"
It features:
* Professor Jack L. Goldsmith, Harvard Law School
* Dr. Robert A. Levy, Cato Institute
* Dr. Daniel Pipes, Middle East Forum
* Professor Nadine Strossen, New York Law School; ACLU
* MODERATOR: Judge Richard C. Wesley, U.S. Court of Appeals for the Second Circuit
Not that anyone needs an explanation, but the official topic is described as follows:
Several important Supreme Court precedents related to the War on Terror and civil liberties were handed down during 2004. These decisions—including Hamdi v. Rumsfeld, and Rumsfeld v. Padilla, and Rasul v. Bush—relate to fundamental issues regarding the separation of powers, due process, and the designation of both American and foreign citizens as enemy combatants. The panelists will consider not only the legal reasoning and conclusions of these important precedents, but also their own legal and policy prescriptions for the Court, Congress, and the President in balancing the security concerns of the War on Terror with the protection of civil liberties.
The pragmatic bent of the current Court has rarely been on greater display than last summer, when those three decisions were handed down. Despite the apocalyptic rhetoric of Justice Scalia's dissent in Rasul ("judicial adventurism of the worst sort"), (offset by the adventurous-in-practice Scalia/Stevens dissent in Hamdi), the Court averted an election-year showdown with the Executive (and possibly, the Legislative) branches in its decisions. As a result, both sides were able to celebrate.
The involvement of courts in reviewing executive action in the war on terror has been robust so far... if it continues, we'll see important choices being made on the issues discussed today.
Professor Goldsmith is currently teaching "Presidential Power" and "Emergency Power" at Harvard Law School. Nadine Strossen has been president of the ACLU for almost 15 years. Daniel Pipes' scholarship and public commentary on radical Islam, and its growth in America under the shelter of the First Amendment (and liberally fertilized by Saudi money) should be required reading. (He has a blog, too). This should be excellent.
Update:
Judge Richard Wesley's introduction noted that the afternoon panels and debates will be framed by September 11, 2001, one of the three moments in history (with Fort Sumter and Pearl Harbor) that demonstrate "what a difference one day makes in the United States").
Further illustration the attention that judges tend to pay to formalities, by correcting the bio in front of him to specify that it is Chief Judge Ginsburg of the D.C. Circuit
Dr. Levy begins by recounting the saga of Jose Padilla. He projects that the DOJ will reach a deal with Padilla because the logic of the Hamdi case makes it appear that the alternative to a deal is his release.
The link between these cases, he argues, is based on four principles:
1. The Hamdi case suggests that detention is only justified as long as hostilities continue in Afghanistan; hostilities are ended.
2. "Battlefield" detentions are permissible, according to Hamdi; O'Hare is not a battlefield.
3. The 1971 Non-Detention Acts require congressional authorization of detentions; but if the post-9/11 congressional acts are such organizations, they cannot extend to a U.S. citizen, in the United States, far from a military zone of combat.
4. Nose-counting: Scalia, in Hamdi, makes clear there are three choices for a U.S. citizen: charge them with a crime (or treason); suspend habeas corpus, or release. Add in the four dissenters from PAdilla, who dissented on the merits, claiming that Padilla's detention was a form of torture and that he should be released.
Dr. Levy contests the governments' characterization of recent cases in terrorism as "victories," and that the latest statements by the government, which say that Padilla fought on the battledfield in Afghanistan, are a cynical ploy to justify his continued detention for a few months, until a court can dismiss his case on the merits.
In particular, he asks "why did it take three years of incommunicado detention" to conclude that Hamdi posed no threat, and release him to Saudi Arabia, when two years ago, the government argued that merely allowing him to see a lawyer would be dangerous to the United States.
Dr. Levy acknowledges that while the problems of returning a terrorist to the battlefield may pose greater potential harm than releasing a criminal for insufficient evidence, and so we might tilt the rules further towards detention. But Congress must act - American citizens cannot be detained on a continuing basis by executive authority alone. Padilla may well represent a threat, he concludes, and if so, Congress should act.
Prof. Goldsmith begins by outlining the simple distinction between enemy combatants, who can expect to have their civil liberties diminished in wartime; and civilian non-combatants, who should not, and traces this distinction to the laws of war and to the WWII Supreme Court decisions. The combatant/civilian distinction was critical in all the Supreme Court wartime cases (Ex Parte Milligan, Ex Parte Endo, Duncan, Quirin, and Youngstown) save one (Korematsu).
All of these cases recognized implicitly or explicitly that the decisions would have been different if taken against combatants, as opposed to non-combatants. This leaves Korematsu: and Goldsmith notes that we have rejected Korematsu, but not the imprisonment of POWs in WW2.
Then, Goldsmith argues that international authorities justify the idea that armed conflicts with terrorists can trigger the operation of the laws of war; and we should see the 9/18 Act by Congress as recognizing that the 9/11 attacks triggered the laws of war.
As a result, those connected to the 9/11 attacks are enemy combatants, and thus have a diminished expectation of freedom — and so those captured can be detained until the end of hostilities. But this conclusion, based on traditional presidential power, must be qualified because of the pressures of the combatant/civilian distinction.
In particular, the flouting of the civilian/combatant distinction by the enemy ensures a heightened likelihood of mistake (since they are all out of uniform). Moreover, the cost of a mistaken distinction is heightened, because we're not sure how this conflict will ever end.
Goldsmith then predicts we will see two changes in procedure. The first, to reduce mistakes, will be to implement heightened procedural protections. This is the change in procedural protections embraced in Hamdi and Rasul.
Second, since we can't conceptualize when the end of hostilities will be, we must look to when hostilities have ceased with the individual, combatant, enemy detainess. Why? Because you do not have to charge an enemy during combat in order to detain them until the end of hostilities. This is an old rule, and we should not change it. As Goldsmith points out, this is easier said then done, but there are many models from other places (e.g. administrative detention) that we can look to.
Professor Strossen reads from the Federalist Society's founding principles, that the state "exists to preserve freedom." Her position will be that "too many post-9/11 freedoms have been sacrificed to provide too little security."
She notes that the ACLU only has a few objections, to about 12 of the 160 elements of the Patriot Act, unlike "radical Al Gore" that the whole Act should be repealed.
Prof. Strossen then says the true extremist position is the adamant, unyielding position that nothing in the Act should be altered, and that the sunset provisions should be prevented, and she links this to "too many" post-9/11 assertions of unlimited executive branch positions.
Next, she cites examples of "conservative" Republicans such as John Sununu of New Hampshire and Don Young of Alaska who oppose various provisions of the Patriot Act. This is her approach - quoting critics of limits on civil liberties, and she lists quite a lot of critics to quite a lot of limits.
She concludes: The war on terrorism is unlikely to ever be over, so we cannot afford to give away our liberties for the duration.
Dr. Pipes begins by asking: "are we at war, or are we not," pointing out that since WWII, almost no one has ever declared war, and that we are engaged in ad hoc legal activities, rather than implementing the legal mechanisms of war.
As he notes, this has caused a tremendous division between liberals and conservatives, distinguishing Sen. Kerry's remarks that the war on terrorism is primarily about law enforcement, and Richard Holbrooke's "the war on terrorism is a metaphor" like the "war on poverty" and President Bush's rhetoric that the enemies' goal is a "war to destroy America," and that "anyone who thinks we're fighting a metaphor" has it wrong.
He raises the timely case of Abu Hali, the Virginian valedictorian indicted for planning to assassinate President Bush on behalf of Al Qaeda. He notes that Hali attended the Islamic Saudi Academy of Northern Virginia, (which he calls "A small piece of Saudi Arabia in America), and recounts the facts (including his defense by CAIR), and says that he takes the threat seriously, and that he is very glad he has been apprehended.
Pipes then criticizes the editorials in the MSM, focusing on procedural matters. For example, the NYT editorial criticizing the administration's failure to immediately prosecute him, makes no comment about the vast implication of a terrorist trained in the United States with Saudi funds as part of their extraordinary religious outreach program. (The Washington Post, Baltimore Sun, the Guardian, etc. all take their shots for editorials "dripping with irony" - in particular the Sun, which claims that the indictment "portrays him as something other than a victim of torture").
Neither his citizenship nor his class rank are at stake here. Rather, we must face up to the fact that the terrorist enemy is not faceless and nameless, but it has a specific name: radical Islam, the ideology. We must focus on the Islamists "who have declared war on us," and it is a fact that radical Islamists come from the rank of Muslims.
Strossen takes a few minutes to respond to Dr. Pipes, claiming that while "John Kerry" may, as charged, underestimate the threat of terrorism, she and the ACLU does not - and that's why she is focused on the fact that the Patriot Act does not protect us. With regard to the NYT, she suggests that the concern is that it's more likely he will be released, because he can't be prosecuted after torture.
Pipes and Strossen clash on the question of whether one of her staff members appeared to disrupt Dr. Pipes' speech.
Goldsmith responds: There is no doubt that we are in a war now. The 9/18 Authorization to Use Force is as broad as the authorizations in any past wars, so as a legal matter, we are in a declared war. The reason why we haven't been in a declared war since WW2 is that, since the UN Charter, "War" as a category, has been eliminated, and so it doesn't help resolve issues of status and rights between powers.
And while there have been no wars declared on non-state actors, UBL and al Qaeda did twice declare war on the United States, and we have authorized force on non-state actors.
Goldsmith: I do not read Hamdi that way, as it was limited to U.S. citizens, and I do not believe it will be extended that way, as there is a very good argument that the Due Process Clause does not extend to noncitizens outside the United States.
Dr. Levy: A plausible reading of Rasul might be to advance the right to a hearing to noncitizens, even outside the United States
-- I'd note that this is Scalia's complaint about "judicial adventurism," I think.
Even Judge Wesley weighed in with his observation on Justice O'Connor's refusal to review battlefield determinations.
Dr. Pipes: I don't think anything so drastic is needed. I don't know what the conviction rate is," but we need to begin to deal with this issue for the long term.
Prof. Strossen suggests that a failure to convict is not a failure of the system, but a success -- maybe if there's a lack of evidence, they're innocent.
It's a good point, but it begs the question.
Dr. Pipes: Indian males carrying $5000 and box cutters, and black hair dye, were captured on 9/12, and were let go after a year. Nothing could be proven, but the question we must address as a society is "Do we want them put through that ringer. They were innocent, but I personally am glad they were put through that ringer."
----
It's a good point, and I think it's likely we'll hear a similar point later today from Prof. Heymann.
One perspective is that he's saying all Islamists should be terrorist suspects, and all men should be rape suspects.
The other perspective is that he meant that we can limit the parameters of our search for terrorists in many cases to radical Islamists, just as we can limit the parameters of our search for rapists, in many cases, to men.
Dr. Levy is challenged to provide support from the text of the resolution, but can't. Strossen argues that the context of the later, Patiot Act enactment, which includes restrictions on detentions suggests that the earlier authorization couldn't have covered it. Goldsmith then points out that he argues the Authorization hits combatants, and the Patriot Act hits non-combatants with limited detentions. Moreover, he suggests that if Padilla is actually a member of al Qaeda, he is associated with the attack on 9/11, and the authorization must cover him.
Judge Wesley suggests reading the 9/18 Authorization, and other relevant documents.
For example, she responds to the claim that the Patriot Act merely codified previous powers by noting that AG Ashcroft called them "sweeping new powers." But that doesn't tell us enough about when it was said, and the codification claim is one that I've seen made credibly enough that it can't be refuted, even if called into doubt.
How do you define a battlefield in the war on terror, if O'Hare is not. The possibilities seem to be:
- where American troops are on the ground
- nowhere
- anywhere that's just been blown up