The
segments included in this interview excerpt were recorded
in January 2004, as part of THE COST OF FREEDOM -
Civil Liberties, Security and the USA PATRIOT Act,
a look at the history of civil liberties in America
and the controversy surrounding the USA Patriot Act.
The documentary is a co-production with Iowa Public
Television. Douglas W. Kmiec is Professor of Constitutional
Law at Pepperdine Law School.
(*
This transcript has been edited due to length.)
How
do you feel about the argument that the USA Patriot
Act is undermining basic civil liberties?
Well
I think the challenges have got more refined over
time. I think there was an unfortunate level of exaggeration
at the beginning. I think for example that the Patriot
Act became a target in some unfortunate ways when
in fact people didn't actually study the particular
provisions of the Patriot Act to see what it was actually
authorizing and doing. And one particular provision
in particular that authorizes the executive to ask
questions about what people are reading at the library
got a world of attention when well first of all its
a relatively minor provision in the act. Second, it
is hinged on a specific showing that the information
relates to aiding and abetting or giving material
support to terrorist activity. And third the authority
has never been used. All of that became the focus
of a great deal of talk if you will when in fact the
other provisions of the act were much more important
and let me just give a couple of examples of that.
The Patriot Act basically said that we ought to at
least treat terrorists to the kinds of law enforcement
techniques that we have available to confront organized
crime and drug dealers. And so it recognized that
technology had advanced and that people were no longer
talking on a stationary phone they were talking on
a cell phone. They were communicating with each other
over the internet and by email and that there was
a necessary updating that had to occur to give law
enforcement authority with specific regard to terrorist
related offences to seek wire taps and the like on
email facilities, on cell phones and not just on one
particular land line to give just one example.
In addition, I thought there was some necessary cleaning
up that had to be done to reconcile what had once
been the separate roles of the intelligence community
and the law enforcement community. In the nineteen
seventies our concern was largely the concern that
intelligence not be misused as a political weapon
to suppress people's speech and political activity
and so there were a number of judicial opinions that
were issued, there were a number of congressional
encasements that were put in place to keep those two
worlds separate to basically say to the FBI and the
CIA don't do spying on the people who are the political
opponents of the president and then use your intelligence
activity to harm them in some way. 9-11 gave us a
new world and it was a world that said well some of
the walls we have built comfortably unexceptionally
between intelligence and law enforcement were sustainable
at a time when we didn't need for those two communities
to talk to each other but a re not sustainable now.
And in fact what we discovered and what congress discovered
when it overwhelmingly passed the Patriot Act was
that the walls were in many cases unnecessary and
not legally required. And so there is a level of sharing
that can go on now between the law enforcement and
intelligence communities that allows for a coordinated
watch list for example of people entering the United
States which wasn't possible before the Patriot Act.
So I think there was an unfortunate level of focus
given to some very minor provisions in the act that
were either unused or relatively less important than
the other provisions and by and large today the lawsuits
that are being filed are asking more profound questions.
They are asking questions about particular individuals
who have been detained, about their rights of counsel,
about their ability to have the writ of habeas corpus
challenge their detention. I think that that's actually
more productive and is going to produce better law.
The
separation of domestic and foreign intelligence that
was legislated in the 1970s was a result of very real
abuses of civil liberties. How do we prevent that
from happening again?
Well
again I think that when the time comes that information
gathered with a foreign intelligence warrant is sought
to be introduced as in the case in chief against someone
in a criminal prosecution, at that point I fully expect
the civil liberties arguments to be fully aired. I
expect the argument that in fact that information
is not admissible, that that information should be
suppressed and only information that was independently
gathered can be used for purposes of the prosecution.
That would give obviously great incentive for the
proponents of the sharing of information to be careful
about what they share. If they are really interested
in preserving the prosecution they will be careful
about being too liberal on that score. But if they're
really genuine about the need to get information now
to prevent harm now then they won't be worried about
the prosecution. And I think that unfortunately that's
the way it's got to be resolved. We may not be able
to have our cake and eat it to. We many not be able
to simultaneously get good intelligence and preserve
criminal prosecutions. We may have to give up criminal
prosecutions to get good intelligence. That may be
the civil libertarian balance that ultimately satisfies
us and protects us. That's kind of an unsatisfactory
thing. It's sort of like letting a criminal go in
utilitarian calculus to get more information to protect
you from the greater harm. But maybe that's the choice
that we have. Now it maybe that when a court confronts
that issue will say no you don't have to suppress
that information that in fact there we enough protections
under the Foreign Intelligence Surveillance Act, enough
judicial supervision of you will, that it satisfied
the Fourth Amendment. Some of the rulings of the court
that we have most recently suggest that the Fourth
Amendment will be fully satisfied. So we might be
able to have our cake and eat it too. But I think
the argument will be made, at least by the civil libertarian
side of the equation, that some of that evidence that's
been gathered will have to be suppressed. And that's
going to be a case by case adjudication and determination
until that principal can either be established or
not. And those cases once they are a precedent will
of course be a deterrent to the misuse of authority.
But even with the statutes passed in the nineteen
seventies ultimately the laws on paper aren't our
surest security against misuse of authority. Our best
protection is by the people we hire and their respect
for principals of law and the rule of law and the
supervisors that they have either their most immediate
supervisors in the FBI or ultimately the president.
If those people don't value civil liberty they won't
be valued on the street as it were on a day-to-day
basis.
Aside from the court though
are there measures in place to prevent more mundane
civil liberties incursions that might not necessarily
reach the courts?
Well
the supervisors, the Attorney General, the director
of the FBI, have out guidelines and the guidelines
are pretty unequivocal about not engaging in intelligence
activities for the purpose of suppressing protected
free speech activity. The famous or infamous Patriot
Act in fact has Congress's own admonition on this
score--that even the library inquiries that hypothetically
could be made cannot be made for purposes of suppressing
First Amendment protected activities. That's explicit
in the statute. And the statute also contains a course
of action if someone misuses that authority. There
have been guidelines set in place. The US attorneys
have new guidelines. There are specific guidelines
dealing with not profiling people arbitrarily on the
basis of race, or ethnicity or national origin. And
at the same time recognizing that particular parts
of the world, particular nation states are still designated
as terrorist states. And particular individuals who
carried out terrorist attacks came from those locations
and therefore some of the things that we see happening
are the logical consequence of police work. If your
criminal suspect has certain profiles you don't just
forget about that in trying to gather evidence about
where the next crime is likely to occur. Again a very
difficult balance. But there are words in place in
the statutes: there are words on paper within the
executive branch and within the department of justice
and the FBI to guide the day to day operations of
operational officers and then we just have to count
on actually people interpreting those words with good
faith and applying them fairly.
A
lot of the debate on these issues revolves around
civil liberties. How do you define civil liberties?
Well
I think the best definition for me is the one that's
captured by our Bill of Rights. I mean you can go
down the list; being protected against unreasonable
search and seizure; being guaranteed the right to
confront witnesses against you, the right of a public
trial. I think the reasonable extensions of privacy
that we've enjoyed in this country in peacetime are
important aspects of the rights as well. So whether
you're talking about having your liberty protected
against arbitrary depravation and therefore due process,
or whether you're talking about the right of political
participation that one engages in through rights of
association and speech, including the rights of association
inside churches and to freely worship in a church
of your choice. And of course we lose civil liberties
in two ways. We lose them when the government grows
so large and powerful that it suppresses speech, that
it suppresses religion, that it suppresses political
association, that it does those things selectively
against its political opponents and when it disregards
the due process protections that attend to criminal
prosecution. But in this life we also lose them from
people who hate us, who launch terrorist attacks against
us and who in essence force us to live with levels
of security that are burdensome. One of the things
that anyone who has ever been subject to a home invasion
knows is that you feel personally degraded by that
home invasion, by that loss of privacy and that uncomfortable
feeling that someone has been in your home and in
your things and that you're family is not safe. And
what do we do? We buy burglar alarms and extra locks
and strengthened windows. Each one of those things
inconveniences the innocent party. So the loss of
civil liberty comes from those who don't value liberty,
who don't value order and clearly terrorist do not.
But the loss of civil liberty also comes from those
who don't value it domestically and don't keep a close
eye on their own government to insure the protections
of liberty that exist in our constitution.
How
would you respond to the criticism that military tribunals
raise questions about America’s commitments to
basic values such as freedom, democracy and rule of
law?
Well
I think that the arguments that have been given on
both sides are serious arguments and they reflect
the uncertainty of the time. America simultaneously
feels at peace and at war, at one and the same time.
Some people have encountered the difficulty of the
war in airport screening and the like and in that
sense it makes it more tangible. But on a day to day
basis oftentimes things seem so normal, thankfully
that we forget the threat that has been executed against
us and continues to be threatened even more so. So
military tribunals have to be considered in that context.
As a form of justice they are not to be preferred
because the form of justice that is to be preferred
are regular civilian courts staffed by lifetime judges
who give criminal defendants advanced knowledge of
charges against them, afford them all the benefits
of counsel, apply the most rigorous and in highest
standards of evidence, to give them in essence due
process of law as the constitution requires. That’
s the ideal, but it’s an ideal that is implemented
fully in peacetime. Our history tells us that in wartime
the interest is not just in justice, in due process,
but the interest is in prosecuting the war to a successful
conclusion. And a successful conclusion means bringing
peace, and means protecting civilian populations.
Military tribunals therefore have always historically
been viewed when they have been used and of course
there is a long history of use in American history--in
the civil war, in world war one, in world war two--as
a means of advancing military objectives, war time
objectives, which means gathering information and
interrogating suspects to prevent the next terrorist
event. And not solely to be focused on what philosophers
would describe, or criminal justice lawyers would
describe, as the purposes of punishment because we're
not there yet. Our interest is foremost in preventing
the next terrorist occasion or attack. Our secondary
interest is to ensure that those who planned, who
aided, who authorized who assisted in those attacks
are punished and punished proportionately. So military
tribunals fundamentally have a different purpose than
normal regular civilian courts. Civilian courts are
solely focused on punishment. Military tribunals have
two purposes; to assist in the prosecution of the
war and the avoidance of greater war like damage to
the United States, and second at the appropriate time
to punish.
What
exactly are the legal grounds claimed by the president
for the military order?
There
would be two primary grounds that the president would
rely upon. First of all it's clear that the Congress
of the United States has functionally declared us
to be at war. Now you'll see scholars on both sides
of this issue argue that proposition. The history
of the United States is that we have been engaged
over two hundred times in military engagements, but
we've only declared war five times. And so a formal
declaration of war is the exception rather than the
rule. But even though it's the exception in this particular
instance we've had two in essence effectual declarations
by the Congress. One is the 9-11 joint resolution.
That very clearly authorizes the president to pursue
those who were behind the attacks, those who assisted
them, those that harbored them, and also very importantly
to focus his attention on preventing the next attack.
And then there was a specific joint resolution with
regard to Afghanistan and the war conducted in that
environment. So the president would say that his powers
are specifically enhanced by these two congressional
enactment's and that just as the declaration of war
in world war two, just as the declaration of war in
world war one, he has a delegation of authority to
basically call to arms the army and the navy and the
other branches of the service. And military tribunals
are an adjunct of that call to arms. Secondarily,
every president from the very first has always relied
on not just expressed declarations of war or their
equivalent but also the inherent authority of the
president to act as commander in chief. And a very
large body of law and commentary accepted I think
reasonably by scholars across the political spectrum
acknowledges that the president has a level of authority
to protect American citizens especially civilian populations
from attack. So I think the president would rely on
that authority as well in addition to the specific
authority given to him by Congress.
In
your opinion, why hasJose Padilla been held for so
long without being charged?
Well
the explanation we've been given by the military and
by the executive branch is that the primary purpose
that he's being held for is one of interrogation.
They believe that he did met with high level or relatively
high level figures of Al Qaeda, perhaps with others
for purposes of planning these dirty bomb episodes
which would be quite devastating to a civilian population.
So the explanation we're given is that the primary
purpose of these detentions is not as a punishment
but as a design by the military to prevent this individual
from either communicating further with his Al Qaeda
compatriots, or second to prevent him from absconding
and not being available for trial and in essence returning
to the battlefield, and third and perhaps in a primary
way gaining whatever information one can from him
about his network of associates that would allow us
to interdict an event similar to the one that we believe
he was planning against the United States. So all
of those purposes are unrelated to charging him with
a crime and are unrelated to his ultimate punishment.
Now is that an extraordinary thing? Well it is and
it isn't. Again if you have a peace time perspective
and you overlay that perspective you say this is a
horrible thing that here's an individual that has
US citizenship and was arrested in a US venue who
has not been given basic requirements of due process--who
has not been given access to counsel, who has not
been charged with a crime and yet has been deprived
of his liberty. This is an extraordinary thing. And
it's certainly and extraordinary thing to be done
in essence on one person's word--the word of the president.
And that peacetime perspective troubles us greatly.
But again you can't totally divorce the fact that
we're at war. And all sides admit, the American Civil
Liberties Union admits, those who are greatly concerned
and are articulating the civil liberties concerns
admit that this is not just a metaphorical war. This
is not just like the war on illiteracy or the war
on drugs, or the war on poverty. This is a war where
there is a real enemy, a real enemy that has finances,
has access to weapons that can be launched at commercial
airliners, that can in fact turn commercial airliners
into weapons themselves, that has killed and has declared
that it intends to continue killing. In that context
you then have to look at the wartime precedents for
detention. And the wartime precedents for detention
that have been applied to both Americans and non-Americans
alike is that individuals can be held for the length
of the hostilities and questioned in the context of
the length of the hostilities.
Now the Geneva convention provides that if someone
is a prisoner of war they can only be asked to give
their name, rank, and serial number. But these people
aren't prisoners of war in a formal sense. They are
enemy combatants, or in the language of the treatise
"the enemy of mankind." They are the pirates
of our age. They're lawless. They don't fight in a
regular army. They're not subject to command and control
of an organized military discipline. They don't fight
with uniforms and insignias. They don't fight by the
laws of law. They target civilian populations rather
than hostile forces. What used to be the treatment
over time over history of such unlawful combatants?
Well it was brutal and it was short. They were captured,
they were questioned, and they were executed. Well
in comparison Hamdi and Padilla are doing pretty well.
They've been captured, they've been interrogated,
but they haven't been executed. And the United States
has promised that some process appropriate to their
crimes will be given them. Now because they're US
citizens they're outside of the military tribunal
framework because the president has chosen to apply
military tribunals only to non-citizens. So in all
likelihood they will either face at an appropriate
time either a civilian trial or a prosecution under
the rules of the military tribunal system that exists
for soldiers. So the short answer is that they are
held because they are unlawful combatants. Unlawful
combatants in history have been treated very summarily
often times executed after giving up the information
they have. In this instance they have been treated
better than that, more humanely than that, but nevertheless
they're still being held under the legal principle
that they can be held for the length of hostilities
which in this instance is an indefinite period of
time. That's frightening, the fact that it's an indefinite
period of time. It was frightening enough for Americans
to see their soldiers held in Vietnam for example
for five, six, seven, eight, years. They were held
without being charged. They were held without due
process of law. They were held without rights of counsel
as all prisoners are. And so to for the past year
and a half, Mr. Padilla and Mr. Hamdi have been held
and I think that detention is likely to continue unless
of course one of the courts involved in a final resolution
says that's not appropriate.
What
is the role of the judicial branch in these types
of decisions?
I
have done some extensive writing for the Supreme Court
and the Supreme Court historical society on the court
in the wartime. And one of the things that you discover
about the court in wartime is they like to be quiet.
They like to speak after the fact because they recognize
that under our constitutional system the kinds of
expeditious judgement that has to be made has been
allocated not to them by and large to the political
branches--to congress and the president. Justice Jackson
I thought put it well. He said during the infamous
interment cases during world war two he said the thing
that concerns me most about these cases is whether
we would involve ourselves and write in such a way
that we would either undermine the necessary steps
that the military must take or that we would write
an opinion that would bless the military actions and
would lie around as he put it like a loaded gun to
be used next time in a wrongful way. So the court
likes to stay its hand. Well the Supreme Court is
not totally silent now. They have taken up review
of the Guantanamo case of the detentions being held
or being conducted there. But they're doing it in
a very incremental fashion. Case by case ,narrow issues
being decided in those cases, very focused points
of law. And in that case I think that American citizens
ought to take a degree of security from that. Namely
that the courts haven't turned a blind eye to this
but they are simultaneously trying to be respectful
of the assignment of military authority to the president
and the congress and at the same time vindicate civil
liberty and due process in individual cases.
There
also seems to be a concern today that it is not only
the courts that are silent but also Congress. From
a historical perspective, is this also typical during
times of war?
I
think it's quite similar to what we've witnessed in
the past and it's probably the kind of thing that
Alexander Hamilton anticipated would happen in terms
of the relationship among the three branches of government.
You'll remember that Hamilton described the president
as the person who acts with energy and dispatch. That's
because he's one person. He only has to make up his
mind and he directs his subordinate officers whether
they're in the military or in the civilian part of
the government to implement his policy and his direction.
And that's one of the reasons why the presidency is
so important both modernly and historically. There's
a hundred United States senators. There are four hundred
and thirty five members of congress. This you know
requires the kind of deliberation in committee and
in consolation with their constituents that the framers
envisioned would take a long time. That said, you
know the congress hasn't been absent during these
events. They have been here to authorize appropriations
for the war and the conduct of the war including the
appropriations for the detention camp at Guantanomo.
They have been here to conduct oversight hearings
for the FBI and their handling of the 911 matter.
Congress has an ongoing investigation as to what the
president knew, what the executive branch knew as
to how those kinds of events can be prevented in the
future. And of course congress has passed these joint
resolutions authorizing the president to exercise
all necessary means. On a day to day basis all of
those necessary means are going to be executive means.
The congress can do it's best with oversight hearings,
with budgetary limitations, with conditions on spending,
with being careful about new authority that it grants
the executive and being careful to review the way
in which the executive has used that authority. But
by and large I think they have been doing that. Now
it probably doesn't make the same level of headline
in the New York Times or other papers of record as
when the president acts because again the president's
easier to cover. You know where to find him. When
he puts out a press release he speaks with that one
authoritative voice. When members of congress speak
they are speaking through multiple committees --the
armed services committee, the intelligence committee,
the ways and means committee-- and each one of them
have a part in checking the executive responsibility
and I think they have but perhaps with less public
visibility.
