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. Ruth Wedgewood is Professor of International
Law and Diplomacy at Yale Law School. Wedgwood is
currently a senior fellow at the Council on Foreign
Relations and adviser to the Department of Defense
on the issue of military tribunals.
(*
This transcript has been edited due to length.)
Currently,
there is a lot of debate around the establishment
of military tribunals. Many are voicing sharp criticism
of military tribunals. Critics argue that the military
tribunals potentially undermine America's basic commitment
to such values as democracy and freedom. What is your
reaction when you hear those kinds of criticisms of
military tribunals?
Well
I think there's been a lot of heat, some light. But
a lot of heat that perhaps is not connected to light.
I think people forget number one that the law of armed
conflict, the law of war has largely been developed
in military tribunals. These are not some anomaly;
it's not Pinochet ricocheting in by parachute. This
is the place where in fact the law of armed conflict
and its norms have been developed. Nuremberg was a
military tribunal. The Far East trials in WWII were
military tribunals. Military commissions have traditionally
been the place where this branch of law was enforced.
It's interestingly in the Geneva Convention itself,
the third Geneva Convention of 1949, which deals with
prisoners of war, article 84 of that convention requires
that trials of POWs be held in military commissions
or military tribunals. It prefers them to civilian
courts. I think on the premise that a brother officer
is going to feel a certain reciprocity that there
before the grace of God, go I. And so it's not an
option, in fact under Geneva '84, you have to try
the person if he's a lawful combatant, in a military
tribunal unless your own soldiers would be tried for
like crimes in civilian courts. So the last decade
of the '90s where we've gotten used to the idea of
the civilian tribunal for the former Yugoslavia set
up by the UN Security Council, or the civilian tribunal
for Rwanda set up by the Security Council or the International
Criminal court set up by treaty, those are civilian
courts but those have not the typical way of trying
war crimes accusations. So the M word here is not
anomalous, it's not unusual; it's in a very long tradition.
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Secondly, I think you have to judge the product by
the product's qualities. I think 50 years after Nuremberg
we all have a very different sensibility than we had
before. And the rules that have been crafted for the
military commissions, which were done with the advice
of a great many people who I think, would carry some
significant weight in this country. People like Bill
Coleman who was the former Secretary of Transportation
under General Ford. A very highly regarded African-American
leader of the bar. Or Lloyd Cutler who's the former
White House Counsel under Carter and Clinton. Or the
former head of the FBI under Carter, Judge Bill Webster
of the Eighth Circuit Court of Appeals, formerly.
Or Griffin Bell who was Attorney General under Jimmy
Carter. Don Rumsfeld as Secretary of Defense, when
he was given the task of trying to design military
commissions for this conflict, sought all of their
advice. And I think took it to heart. It was across
the aisle, it was advice on appearance as well as
substance. And the attempt was to make the commissions
as liberal as one could possibly do. At the same time
that you had to deal with two or three practical,
functional problems. And those problems are well known.
One is that you might have to, in very limited cases,
consider evidence that could not be published to the
world at large. And that's something that can't manage
in federal district court, given our current rules,
only in a military commission. Secondly, to let in
a broader range of evidence. Whether it's hearsay
evidence or confessions that were appropriately taken
while a person was in military custody.
There's a different problem here, that the battlefield
is not a crime scene investigation. You don't always
have the first hand witnesses forth coming that you
would hope to have in a Republican, collegial society.
So you may have to consider, for what it's worth and
no more than that, evidence that doesn't have all
of the crime scene providence that you expect in an
ordinary, civilian, peacetime case. Third, there's
an issue about security. I think that a concern that
with al Qaeda having bombed the World Trade Center
six weeks from, six blocks rather from the southern
district of a New York Courthouse, that the problem
of vulnerability shouldn't be dismissed out of hand.
And indeed, one of the jurors who later was interviewed,
perhaps inappropriately, by the New York Times after
the embassy bombings case verdict, a gentleman who
happened to be Jewish, said he had felt intimidated
in his choice of penalty. They didn't want to be singled
out by al Qaeda for revenge. And that sense that they
may be less than forgiving in their response to verdicts
is a real one that judges who have dealt with all
these trails in the past, the federal district judges,
they have 24 hour protection with very serious U.S.
Marshals providing personal security for them and
their families. And that's not something that's available
to jurors. So I think that too, I think made it seem
appropriate perhaps to think about using the traditional
venue of military commissions. But somehow I think
in the rhetoric of the debate, the M word has gotten
all mixed up with Franco and Pinochet and the Gulag
and I real harem-scarem rhetoric without I think a
fair hearing of what the attempt has been, which is
to provide as much due process as one possibly can
consistent with the felt need to try some of these
cases while the conflict is ongoing. And frankly,
I think there may be cases you shouldn't bring. If
you can't bring convincing proof, and have the bulk
of it be public, maybe you shouldn't bring the case
at all. You can certainly hold people, lawfully, under
the law of war, as combatants, captured in the battlefield
for the duration of the conflict. They don't have
to try people. But if you do try them, you should
take seriously what criminal lawyers mean by the weight
of the evidence, and that really is something that
you almost have to be a criminal lawyer to have an
intuitive sense of. It's far more than civil law;
it's far more than preponderance or a case about money.
It's a kind of finger feeling it's a specificity of
proof that criminal lawyers gain by practice but that's
not always evident to historians or civil lawyers
or journalists or others. And so if you can't bring
a good case, we shouldn't bring a case at all. But
at the same time I think that there's been a kind
of hysteria whipped up, almost a kind of, I wonder
sometimes, kind of a sublimation of anxiety about
al Qaeda itself. That if you pretend that all the
ill has been caused by George Bush then there's no
problem or danger from al Qaeda.
If
we can expand a bit on that final point that you just
made. You have identified some very distinguished
experts who have worked on these issues. You talked
about how this has always been the norm and you have
given lots of examples. My question is, if the critics
know those things too, then why the fear? Why the
panic? Why the rhetoric around this particular issue?
Well
critics can know things and there's a difference between
understanding, and kind of a superficial knowledge.
I think it's frankly hard for me to place a lot the
source of the elevated rhetoric, to put it kindly.
It partly, people may prefer that things be done with
the concurrence of two branches of government. And
certainly for a President that's most comfortable
if he has the Congress openly approving everything
he does. I think in this case the very fact that the
Congress, though, voted almost unanimously, I think
there was one dissenting vote, to have the President
go to war against al Qaeda, getting him the power
to make war against the organizations and individuals
that "he" determined and the statute uses
the language "he" determines the people
"he" determines were part of the organizations
that brought you 9/11 That is a very broad endorsement
by the Congress. It means it is wartime that's as
close to a technical state of war as we ever get anymore.
In fact, the phrase is now used as a state of armed
conflict. But it is a declared war, it's a war endorsed
by the Congress. And therefore the powers of the President
as Commander in Chief fall into place. But I suppose
we haven't really been engaged in a serious, existential
war, I mean, one where in some sense, survival is
at stake. And I don't mean to be over broad about
that. But again, what made me a hawk on Bin Laden
and al Qaeda after many years of slumber is that well
- I did a debate at Yale on him in 1998 and began
to read around in the federal broadcast information
service network, it's a wonderful online, real-time
translation of press from around the world. And it
was quite clear in '98 and '99 that Bin Laden at that
point was trying to find a tactical nuclear device
if he could find one on the black market in mother
Russia, where everything is for sale - material, your
mother's cousin, anybody, anything. And with a number
of nuclear artillery shells that were present in the
Warsaw Pact Armies, with the fear that an economically
crumbling Russia might not have the handle that it
should have over both suitcase bombs or just simple
material from reactors, fuel rods.
The fear that Bin Laden's ambition might be realized
is a serious one. Was and is a serious one. And you
might ordinarily say, "Oh who would - no one
would ever do that." But no one would ever have
done what Bin Laden did on September 11th. There's
almost a kind of common law, customary law of terrorism,
horrible as terrorism is, you kill enough women, children
and innocents to get on television. Five, ten, a hundred,
two hundred. But the idea of killing three thousand,
or ten thousand or thirty thousand in one fail swoop
is something that just was not within the imagination
even of political terrorists. So that kind of nihilism,
where he has, where Bin Laden openly has spoken of
an ambition to have a Hiroshima kind of event where
if the evacuations hadn't worked right on 9/11, you
could easily have killed fifteen thousand people where
Ramsey Usef, when he was caught, after the first World
Trade Center bombing, after he was interrupted, God
Bless, in his plan to take down eleven passenger jets,
spoke as he was taken into custody of the original
ambition to have the towers topple into each other,
and topple across lower Manhattan. If you have a group
that openly avers the desire to kill thirty, fifty,
a hundred thousand people, that's a very different
kind of event. That really is an act of war. It's
different in kind and quality from normal terrorism.
And in that kind of a situation I think whatever one's
historical chagrin, about the Palmer Raids or the
treatment of Japanese citizens in World War II, you
still have to be very serious in your response. It
simply doesn't make sense to say that because we regret
some of the things that we've done in other wars that
therefore anything we do in this war, no matter how
measured, how careful, how transparent, is necessarily
excessive. That is just to make light of the situation.
So I wonder sometimes, a lot of these debates I think
are continuations of really quite ancient debates.
Is Alger Hiss guilty? Are Sacco & Venzetti guilty?
Was Joe McCarthy excessive? I guess my point is that
whatever your political background, surely you can
agree that al Qaeda's dangerous. Alger Hiss could
be innocent and al Qaeda would still be dangerous.
And so I guess part of my conversation over the last
two years has been the attempt to talk to people who
come from a background similar to mine really, New
Yorkers, people who may have come from a trade union
background or a central Democratic background, to
say, don't put this into the adversarial boxes that
have been created over the last fifty years for other
political debates. It's too serious. Put to one side
what you think of Alger Hiss; just understand that
this man is exquisitely dangerous. And there I think,
there's been some change in the center of conversation.
I think people do - can see that al Qaeda now is dangerous.
That in fact there is a right to detain combatants
who are caught on the battlefield. You can't do that
by the standard of a criminal trial beyond a reasonable
doubt, just you haven't got that kind of proof, available.
But I do think that there is still perhaps a kind
of luxurious feeling, we can have it all. Perfect
privacy, perfect fact finding, perfectly delicate
process, if you like. And at the same time be able
to undertake the kinds of operations that we need
to disable al Qaeda in its very far-flung network.
You may have had the recognition in '98, certainly
on September 11th, a fear of exactly what al Qaeda
could do. When you looked around after this event
and with that recognition what did you identify in
terms of the legal sphere, were holes that needed
to be filled in order to combat this? Because I assume
many people would say that the flaw here was in intelligence
rather than the flaw is in the legal system. What
did you see?
Well
I think even before September 11th, plenty of people
had identified the problem that we couldn't share
what we knew from the criminal justice system with
what we knew from the intelligence side. A terrible
flaw. Fatal flaw, almost. That the CIA, which was
the only real source of collection overseas, could
not talk to the FBI, which is the major collection
agency at home. And that was in part the reform attempts
from the '60s and '70s, the Civil Rights movement,
and the Church Committee hearings. What seemed sensible
at the time to create a kind of firewall between the
intelligence agencies and the criminal justice agencies
and have each go and do their thing. But with a real
time terror network that goes on-shore and off-shore,
where FBI agents can't collect abroad, 'cause their
overt. They can to some degree with the permission
of their host country. But as soon as the Yemeni government
wants to turn it off, they have to leave. So you had
this really absurd situation where knowing how dangerous
al Qaeda was, we still couldn't pool what we knew
from the two halves of our brain. It was like a lobotomized
government. And frankly this problem had been identified
before September 11th, I gave a talk in June of 2001
where a couple of agency people came up to me afterwards
and said that, "You're right. We're not pooling,
we can't pool." It's deadly. And when I went
to see the head of the Senate Intelligence Committee
after that the general counsel of the Senate Intelligence
Committee to just chat about where things were politically,
whether one could change this, the consensus was that
the architecture left over from the '70's, the Church
Committee kind of architecture, was so much in our
bone marrow it was so orthodox, that no one could
change it. That it was simply something one had to
live with. Even knowing the real crippling effect
it could have on real-time, appreciation of what al
Qaeda was doing. So I think parts of what happened
post 9/11were kind of a shock of recognition that
yes indeed we should have done it a long time ago,
and we should have rank ordered, you know, the possible
ills in life. We should have built in everything we
know about paper trails and accountability measures
but still made it possible to respond in real time
to al Qaeda. So, an intelligence pooling, absolutely
critical.
Second issue was whether you could ever use an intelligence
wiretap against not simply a foreign country, but
a foreign terrorist network. 'Cause up until September
11th with the PATRIOT Act passing Congress, you could
wiretap Bulgaria if you like, but you couldn't wiretap
al Qaeda. Unless you could show they were working
for a foreign country. Kinda crazy. And with the PATRIOT
Act one of the other important changes was to say,
yes you could wiretap a foreign terrorist network
just as if it were a foreign government. And another
change that was made there was to say you didn't have
to be telling fibs or fables about what your purpose
was. You could say with this intelligence wiretap,
I anticipate that I may be treating this matter both
criminally and intelligence ops, so long as a significant
purpose is intelligence I can use an intelligence
wiretap. 'Cause in the old days again, pre-9/11, if
you thought a case might ever go criminal, you could
not use an intelligence wiretap, there was the desire
to keep these two worlds entirely separate. So partly
what you needed, I'm afraid to say was September 11th
as a way of being shook awake, I suppose, and understanding
that it really was a serious group of people out there
who had to be countered. Some of the other issues
again, how you try a case, we are again, deeply familiar
and committed to our traditional way of trying cases
in federal court where you never allow anything other
than the immediate eyewitness to come in and testify
as to what he saw. Where you don't allow any form
of hearsay. Where you don't allow the French method
or the International method of dossiers where you
might have some documentary evidence coming in. In
general it has to be the first-hand eyewitness who
actually saw it coming in a live voice to testify
in that courtroom. And that's something that was not
done in the Yugoslav tribunal, the Rwanda tribunal,
Nuremberg, the Far East. But we're used to it for
normal, OJ Simpson style crimes. And we feel, again
in peacetime, that you can get the level of rape,
robbery and murder down to an acceptable level by
not successfully trying every case. Just trying some
of them. The problem with al Qaeda is that you're
asking government to do something very different.
You're asking them to anticipate every attack. Because
every attack, if it involves catastrophic weapons,
and is used against civilians, if you have WMD, and
deployed against civilians, you really can't afford
to let ten percent of folks go through with their
crimes. So you're asking government to act before
hand rather than retrospectively afterwards. You're
asking them to have a kind of 100 percent batting
average. You're asking them to gather evidence against
a group of people who largely come from abroad, speak
a foreign language, have deliberately chosen to compartmentalize
network with counter-surveillance training, and hoping
to do that by ordinary methods. It's tough. So I think
really 9/11 was the culmination of a decade where
we were very slow to acknowledge that al Qaeda's ambition
was significant, that it had a very significant learning
capacity, that it was quite content to take the fight
on-shore as opposed to just bedeviling our soldiers
and our diplomats abroad. But I think really after
the east African bombings in 1998, where two hundred
or more Americans and Africans were killed, and forty-five
hundred, four thousand five hundred people were wounded,
many of them grievously in the destruction of the
two embassies by then we should have really had a
more serious, I think, acknowledgement of what we
were facing.
You
mentioned the Church Committee in your last response.
You also mentioned that just because these things
happened in the past, civil rights abuses, etc. doesn't
mean they are going to happen right now. How do we
guard - what checkpoints do we put in place so that
we don't look back on this in twenty, thirty years
from now and find that we overreacted out of fear
or trampled any constitutional rights? How do we keep
checking against that?
Well,
we're a very different country with a very different
culture. It's been fifty years of human rights law.
Fifty years of evolution in the law of armed conflict.
I think the sense of being able to do targeted investigations
is much greater. Cops don't, for the most part, one
hopes, beat up people anymore. Whereas fifty years
ago, you know, station houses were not some place
you wanted to go. So the effect of fifty years of
jurisprudence of the Warren Court, the Berger Court,
the Rehnquist Court has made a difference. Fifty years
of human rights law, the universal declaration of
human rights. The civil and political rights covenant.
The evolution of the law of armed conflict. But at
the same time I worry that again there's too easy
an assumption that you can simply translate from peacetime
to wartime. And Churchill would have been the first
to say that in the middle of a conflict you can't
tell your adversary everything you know about him.
So the kind of open file prosecution that we're so
used to, you know mi casa es su casa, come see my
files I'll give you every statement anybody's ever
made that had anything to do with the investigation.
That doesn't work very well if you're trying to keep
al Qaeda from knowing what you know about them. It
may be an argument for putting many trials off until
the al Qaeda's back has been broken. But at the same
time then you have to give due to the appropriate
weight to the prerogative of wartime which says that
you can keep someone interned as a combatant for the
duration of the conflict on something considerably
less than proof beyond a reasonable doubt.
Some
argue, for example the ACLU, for civil trials versus
military tribunals. They suggest that the framework
to avoid many of these things is already in place,
for example, the Classified Information Procedures
Act. Are they misguided in suggesting that those remedies
are already in place?
Well
I think some people who join the issue, don't know
their criminal law very well. What ironically thrust
me into part of this debate was not self-selection
but just having been a federal prosecutor, having
done war crimes work with the UN and The Hague and
the Yugoslav tribunal, having done law of armed conflict.
And way back when, in my early misbegotten youth,
right out of law school, after I clerked for Harry
Blackman on the Supreme, I actually was part of the
little group of people that wrote the Classified Information
Procedures Act. And the attempt back then in 1980,
was to use a statute to make it easier to try cases
that involved classified information. The problem
at that point was in a series of prosecutions, both
of alumni of intelligence agencies, and of bad guys
who were spies and such. There was an attempt by the
defendants to use the threat of broadcasting intelligence
information at large as a way of dissuading the government
from bringing charges. What the Classified Information
Procedures Act did, it was, and it was based on actually
an Indiana prosecution of a silly young man named
Cab Pillies who decided to compromise a very important
satellite system by throwing the operational manual
for the KH11 satellite system over the fence of the
Russian Embassy in
Athens. A ten billion dollar system. Many people casually
would remark that that might have had something to
do with the failure of SAL 2. Because if we can't
see what the Russians were doing, they knew what we
could see, then we were less able to verify what they
were really doing. And when Cab Pillies was tried,
same kind of problem. The fact that the Russian's
have the operating manual doesn't mean you want every
little country around the world and every detail about
the operating system. So in that trial we played around
with a number of procedures to try to figure out ways
to minimize the kind of collateral damage. And among
the things done was the idea that you could put a
document in evidence but redact part of it, edit part
of it out if it wasn't relevant. Or, substitute a
generic description for a particular particle. Let's
say if the satellite system says that the satellite
can see down to the following number of miles or meters
or whatever the measure tens of yards whatever the
measure might be, that you wouldn't put the particular
number in. But rather, just put in a like a sort of
quantity x. 'Cause it doesn't matter. Third to be
able to force the defense to make a proffer of what
they hope to prove if they're gonna introduce classified
evidence. Protective orders to keep people from sharing
in and outside the courtroom. But, push come to shove,
what the Classified Information Act could not do was
to change what was taken to be Sixth Amendment jurisprudence.
Which says that if you're gonna actually offer something
into evidence against the defendant, then it has to
be made public. That's just not only a rule of procedure
but it's taken to be quasi-constitutional. And there's,
I think, just huge misunderstanding amongst lay people
and non-criminal lawyers. You can't close the courtroom
in a federal district court. Period. Yes, you can
have a sidebar. Yes, you can have protective orders.
But when you're offering proof, it's open to the public,
including al Qaeda. Now if Congress were to say that
given the wartime setting, we're gonna have different
rules for federal district courts, I think the court
would probably sustain it, the Supreme Court. But
it would take Congress to do it. Most federal district
judges would not feel that latitude on their own.
I've been surprised at how passive Congress is. But
CIPA, this Classified Information Procedures Act does
not solve your problems. And you have to try a criminal
case perhaps to appreciate it. The document your going
to put in to drill the nail through the defendant's
legal heart if you will, pardon my overwrought metaphor
it has to be made public, it is made public. It's
one of the costs that go into trial. There are plenty
of criminal cases that are not brought in ordinary
circumstances because you don't want to compromise
intelligence information. Every prosecutor has a story
of starting out, you know blissfully, innocently in
the grand jury, stumbling around in some transaction
and a discovering that he's crossed wires with other
agencies and doesn't bring the case. Just fact of
the matter. Secondly, on hearsay evidence. The hearsay
rule that you can't offer out of court statements
unless they're the defendant's own statements, has
been made quasi-constitutional as well. So you could
not offer into proof, for example, the confession
made by co-conspirator. Just can't do it. Sixth Amendment,
right of confrontation. Could Congress change it in
wartime? Probably. Supreme Court would probably sustain
them if they had appropriate fact finding. But can
a federal district judge do that on his own? No. So,
I have a lot of pals who run a lot of these groups,
so. Some of them are ex-prosecutors. And they know
better. But a lot of people don't understand how awfully
constrained you are in proving a case in federal district
court. And I think frankly there's been a lack of
creativity on the part of Congress or of some of the
civil liberties groups in trying to offer alternative
ways of trying cases. I've been waiting for somebody
to say, "Shouldn't we perhaps have a terrorist
court. Defined as you wish." But I think actually
stranger there's been a certain. I think there's been
a certain comfort in fact unspoken. In keeping this
in the military box. Saying that to be tried in such
a court you will have to be somebody who's done something
that looks like the actions of a combatant. It keeps
it in sort of a safe box. Whereas a general terrorism
court that could reach financing, or harboring, or
a great many other acts, I think might give greater
discomfort. But in general I have to say… academia
and the critics have not been very forthcoming in
proposing any alternative framework to handle this.
They just keep saying, "Well, you brought various
terrorism cases in the '90s, you got convictions there,
that proves that's sufficient." The answer is
no, that the first World Trade Center case, the embassy
bombings case, were brought successfully in southern
district of New York, got convictions, but al Qaeda
kept on merrily. And indeed Ramsey Usef who was wanted
in the first World Trade Center case for the '93 bombing
almost pulled off this horrible Bojinka Operation
which was going to take down eleven airliners across
the Pacific. And he was foiled only because he happened
to have a fire in his apartment and the Filipino fire
department happened to come and respond and noticed
something was a little unusual.
Can
you just explain briefly the actual legal grounds
that allow the President's order establishing military
tribunals? What authority does the President have
to issue such orders?
Well
the President is the Commander in Chief in wartime,
in declared war. Declared by the Congress. It's actually
part of his duty under the law of war, to enforce
the law of war. There's actually an affirmative duty
to repress violations to punish or vindicate the law,
in the face of violations of the law of armed conflict.
And clearly, al Qaeda, without dispute, in targeting
civilians has violated the law of war by anybody's
lengths. And I think the view of the administration,
which I share, is that private groups are also not
free to go to war. That war in public international
law is a prerogative only of nation states. But not
any self-appointed group can just declare that they're
warriors and are going to willy-nilly target the Pentagon,
the U.S.S. Cole, barracks. Riyadh Training Center.
Picking off shipping, military ships, and military
personnel. So, that too, unlawful combatantcy, making
war when you don't have the right to make war, is
another ground for complaint about al Qaeda. But that's
part of the President's power as Commander in Chief.
He would be remiss if he didn't prosecute those crimes.
And the use of military commissions has been a constant
throughout American military history. It was used
in World War- it was used in the Civil War. I'll give
you one very appealing example. The man who ran the
Andersonville prisoner of war camp, and grossly mistreated
prisoners in the Civil War, he was tried in a military
commission. The conspirators who tried to kill, who
killed Lincoln were tried in a military commission.
Most of the war criminals in World War II were tried
in military commissions. In the Far East and in Europe.
A military commission is a war court it's not the
court martial designed for ordinary peace time failure
to polish your uniform, insubordination, rape, robbery
and murder in a military base kind of trials. These
are war courts. Sometimes they're held in the battlefield
itself, sometimes they're held behind lines, but they're
designed for wartime crimes and violations of law
of war specifically. What's been interesting is that
every time Congress has acted to reform the court
martial system, they have also openly acknowledged
that the commission system is a parallel, authorized
system. In 1920, when the articles of war, so-called,
were reformed. In 1950, when the uniform code of military
justice was enacted, on each occasion, the Congress
openly said that the changes on court marshals did
not in any way intrude upon the President's authority
to convene military commissions. So the idea that
this is the President off on his own, off on a snoot,
is just not true. The legislative history says to
the contrary. So too some people have said, "Well
it's only for spies." Not true. If you look even
at the 1863 Union Army manual, crafted by Francis
Leiber who was a Swiss-German-American Columbia University
Law Professor, commissioned by General Halleck to
write a manual on the law of war called, General Order
Number 100. Leiber has at least four different kinds
of so-called unlawful combatants. People who have
gotten out of uniform who are bushwhacking behind
enemy lines to destroy bridges, or ferries, or shipping.
People who are not obeying the stricture that you
must identify yourself as a soldier and therefore
make it possible to discriminate between you and a
civilian. So some people - serious academics have
been quite startled. Have said, "Oh, that the
phrase unlawful combatant was invented by the Supreme
Court in the Ex Parte Quirin driven saboteur case
in 1942. Go read the Leiber code from 1863. Read the
Brussels Declaration from 1874. Go read the Hague
Conventions from 1899 to 1907. That's always been
the case. That to be admitted to the privileges of
belligerency, meaning you have a right to fight a
war. You have a right to fight for your country and
not be considered homicidal. The act of killing in
warfare, as sad as it is, is not murder. When it's
committed by a soldier for his country. But that privilege
assumes that your side will obey certain minimum conditions
of having a commander, wearing some identifiable insignia
or uniform so you're not endangering civilians. And
so too, that you have to, in general, obey the law
of war on your side. You can't have asymmetric war
where you say the other side has to fight by Marcus
of Queensbury rules but you can do any old thing.
So
those arguments you just made, are those important
distinctions, are they arguments why the prisoners
at Guantánamo should not be afforded prisoner
of war status?
Well
the al Qaeda folks at Guantánamo, certainly.
They're not fighting for a nation state. They have
as their avowed purpose the fatwa that says, attack
all civilians. Jews, Christians, Westerners, Muslims.
Anybody who al Qaeda doesn't like can be attacked.
And that is utterly illegal of the law of war. And
as well they're going to attack any U.S. military
installation that they care to or battleships or and
that as a private group is unlawful. And the Taliban,
it's a closer case, but even the Taliban is not relieved
from the obligation of identifying itself as an armed
force and generally obeying the laws of war. And what
happened in Afghanistan may be nearly unique but what,
but really the Taliban was almost taken over by al
Qaeda. The Afghan regime, the Taliban was required
by the security council to surrender al Qaeda and
refused to, despite mandatory decisions under Chapter
7 of the UN Charter, which the Taliban were bound
to obey. Instead they became a kind of a host for
al Qaeda. And they were never of course the government
that was seated in the general assembly that was the
Northern Alliance. But even apart from that they became
this kind of viral host if you like. And so the President's
decision, which I think was a perfectly reasonable
one, was that they flunked the four-part test. That
you have to- have to be an armed force of a nation
state, you have to have some of organization, you
have to have a commander, you have to generally obey
the laws of war, on your own side. So I think the
ultimate decision George Bush acknowledged that the
Geneva principles were important, that we would follow
them wherever we could, but that in the case of al
Qaeda and even the Taliban, that they didn't meet
the four-part test.
The
recent warnings, I'm thinking particularly of the
military tribunals, the Padilla case. The federal
court there is agreeing with the critics that the
President's order exceeded his Constitutional authority.
They cited the '53 Supreme Court ruling of Truman
and the Detention Act of 1971. What is your opinion
of this decision and if it was the wrong one, why
was it misguided?
Well,
the dilemma of Jose Padilla is a real one. He's a
alleged Chicago gang member, born in Brooklyn, who
was recruited by al Qaeda, went to the region some
time ago in 1998 and tooled around Saudi Arabia, Pakistan
Afghanistan, then hooked up post-9/11 with a man named
Abul Zibidah who was a very senior planner in al Qaeda.
And offered to Abul Zabidah, that he Padilla would
undertake a dirty bomb plot. That he would set off
an emission that would scatter fissile material in
some American city. And the attempt to try to make
an area uninhabitable for a long period of time. If
you can imagine Lower Manhattan or the Mall area in
Washington becoming uninhabitable. And Abul Zabidah
took him seriously, talked to him and then sent him
to get explosives training in Pakistan. Then in 2002,
Abul Zabidah sent him to see some other people in
Pakistan to talk about going back to the U.S. and
either doing target spotting for such an enterprise
or picking out targets and actually engaging in the
bombings of train stations and hotels. So, on his
way back, if you like, Padilla was in the hot pursuit
of agents. We probably could have, and perhaps we
should have arrested him in Pakistan before he got
on the airplane, but instead we followed him to see
where he would go. He went to Switzerland and then
to Chicago he was arrested in Chicago initially as
a grand jury witness, but you can't hold people very
long in that capacity if they won't testify, and they
can't claim the fifth amendment right against self
incrimination, unless you're willing to give them
immunity from criminal penalties. We can't then force
them to testify. And the question then was what to
do with him. You have a very good intelligence case,
from Abul Zabidah's mouth corroborated by circumstantial
evidence that Padilla was doing what this account
says he was doing. But you have almost nothing that's
admissible in the highly restrictive rules of admissibility
of evidence in federal court. Great intel case, dangerous
guy, but no ability to bring a criminal case unless
you were to take Abul Zabidah back from abroad, bring
him to the Chicago or some other courtroom, try to
persuade him to function as a witness. He's a hostile
witness at best; you need him as a very important
intelligent source for ongoing debriefs on a host
of other issues. To decommission him as an intelligence
source to try to criminally convict Padilla would
be I think seen as kind of a strange triage choice.
So what do you do? And that's where Congress hasn't
provided very much. But it is part of the President's
power to detain people who are engaged in attacks.
And in an ordinary battle setting, it's not just the
moment you pull the trigger; it's as you scope the
targets around the hill. If you take a classical battlefield,
someone who's holding the horses can be a combatant.
But here you certainly have a guy who was at least
allegedly, actively engaged in target spotting and
in carrying out attacks. He offered to carry out attacks.
He's not someone's mother who did their laundry. What
do you do? The district judge in the Southern District
of New York, a very highly regarded man named Michael
Mukasey, uh longtime friend of Rudy Guiliani, scholarly,
academic, thoughtful, just really well-regarded in
New York as a judge said, "Well he is a combatant
however I'm going to require the government give me
some proof of that." Some evidence was the standard.
And the affidavit that was filed by a Department of
Defense official named Michael Mobbs, which described
the intelligence given by Abul Zabidah was that by
judgement casing to be initially sufficient but he
was going to give Padilla the chance to see a lawyer
and present any rebuttal evidence that he wished to
present. The Second Circuit, to people's amazement
frankly, said in a split decision 2 to 1, "He's
not even a combatant. No matter what the government
shows, you can't hold him as a combatant. You're only
option," said the court of appeals, "is
to either hold him as a grand jury witness,"
which was silly, been there, done that, can't hold
him, probably took the fifth, "or to indict him."
And that if you like, crystallized the problem of
using ordinary criminal law for this purpose, because
in ordinary criminal law, until you can prove your
case beyond a reasonable doubt by traditional, admissible
evidence, the person has to be allowed to roam free.
Run Free. It's not a whale or a porpoise in this case.
So there really was no other power available to use
other than that of the Commander in Chief and his
right and duty to interrupt an ongoing attack. And
that's the part the Second Circuit, I think, got wrong.
They said, "Well there's this thing from 1971
called the non-detention act which says that no American
citizen can be detained absent the authorization of
Congress." The government replied and said, "Hey
we have a declaration of war. That's an authorization
to hold combatants who are engaged in ongoing attacks."
So the court did it as a matter of statutory construction,
but I think they put an unreasonable burden to say
that Congress has had to have specified out loud that
yes you could hold people who were engaged in attacks.
I think a more reasonable interpretation is that when
Congress declared war on al Qaeda that that power
of the President went without saying.
How
long is it okay to hold someone without charge? Padilla's
been away without any opportunity to talk with anybody
for over one year now. The critics would say they
might accept the argument you've given so far but
when how long before they are charged?
Well
in Ex Parte Quirin they were charged with a capital
offense and put on trial and hung. So there, of course,
you have exquisitely good process you should, anyway.
Although, I think, fifty years later we would try
that case differently. But when you're holding somebody
as an interned combatant, it is a different status.
In World War II, we had about 400,000 Germans and
Italians held in the Continental U.S. as prisoners
of war. They didn't go to court, they didn't get lawyers,
they didn't have habeas corpus. It's a different world.
It's the world of war. And when you capture somebody
on the battlefield then you are required to take their
surrender. You can't shoot them. I mean ironically
enough the power to intern somebody as a captured
combatant is the flip side of the humanitarian rule
that tries to preserve life on the battlefield. It
says that even if you're in an unobserved island in
the South Pacific you must take that Japanese soldier
as as a prisoner. And in unobserved situations, you
know if you - if you craft an unreasonable rule, if
the rule said you can't - you have to capture but
then you have to release, you fear in for the kind
of systems maintenance of the law of armed conflict.
Then you'd have a great many countries and a great
many settings that wouldn't take prisoners. So this
right to hold the prisoner is the, if you like the
other shoe on the foot that that tries to preserve
the lives of combatants on the battlefield. On time,
the traditional rule is until the active hostilities
are over. And that's a problem with al Qaeda because
there's almost nobody who can demobilize them. I think
one thing that the government may well want to think
through in the next short to medium term is some method
for longer-term internments, of reviewing whom the
people are at a periodic interval. Almost asking in
a kind of mental health way: Is this person still
dangerous? What do we know about them? Is it somebody
who was just swept up in the excitement of the Taliban
or is it somebody who's committed? And that kind of
screening has been going on. It hasn't been as visible
to the public perhaps as would have been desirable
in terms of public relations. I loathe doing what
many, in a kind of formal, burden of proof, he said,
she said, way because you have to really get to the
nub of it, is the person still dangerous? If they're
caught with a gun in their hands, it's certainly reasonable
to presume initially that they're dangerous. On Padilla's
case, it's the added complication that he's a citizen.
So he has a right to habeas corpus. To have his case
reviewed in federal court. And the issue there is
how much you can ask the government to disclose in
the middle of a counter-intelligence operation, and
with the added exquisite dilemma that you want to
get as much intel for folks as you can. No doubt about
it.
If Padilla had a buddy who was gonna carry out an
attack on Grand Central Station, it'd be awful nice
to know about it. You're allowed to interrogate people,
both under Geneva and otherwise. And the fact of life
is that as soon as you appoint a lawyer, since lawyers
operate in a traditional criminal law setting, their
very first advice to a client is going to be to hush
up, don't say anything, can't help you. It will hurt
you criminally; it could hurt you in terms of the
length of your internment. Just shut your mouth. So
what that means is if you appoint a lawyer for Padilla,
for the first 48 hours or three weeks of his internment,
he will cease to be available as an intelligence source.
The attempted rebuttal to that is, "Well, if
he's got some good stuff, he's gonna tell it to you
right away." Well, I fear, I mean, that's not
true. A gentleman named al-Faruk, who was caught in
the region, a non-American citizen. Gave up very important
information about plans to attack foreign embassies,
American embassies, throughout the southeastern, Asian
archipelago in all Indonesia, Philippines, places
like that. And he gave it, gave that information only
90 days or more after his initial capture. bin Laden
requires his people to stay silent for a significant
period of time - and if you set a specific date, you
know that - that quickly becomes known and then the
person knows they only have to hold out until that
date. So it's a real dilemma, we're all reared to
think, "the more lawyer the better." "I
like lawyers," you know, "Every child should
have a lawyer." "Every professor should
have a lawyer." But at the same time a lawyer
in the setting of a military interview, is going to
cut off the intelligence source. And we have very,
very few methods of learning about al Qaeda other
than capturing people, debriefing them, dumping their
date books, dumping their organizers and trying to
just work through the scheme of people, one by one.
It's easy to say, "Well that's the cost of democracy,
we prefer to do it this way." And if al Qaeda
was a lesser threat, I'm not sure I'd have the same
position. But again where there are innocent lives
at stake as victims, where human rights as a commitment
enters on both sides of the equation here, we have
a right, a human right not to be killed by an al Qaeda
bomb in Grand Central Station. That it's not an easy
question. And I think it's one that the Second Circuit
unhappily dealt with in a very reflexive way. Thinking
this is how we do what we do people sometimes joke
about the military and the military does what it does,
does what it knows how to do. Well judges do what
they know how to do. They don't have much occasion
to think through these other kinds of situations where
you have to balance rights on both sides of the occasion,
equation.
Either
the argument is the power to declare war and to establish
military tribunals is actually congressional or the
argument is still that the president as Commander
in Chief has been given that power through the declaration
of conquests that we were at war. Some people argue
whether there was any official declaration that we
were at war.
There's
been as official a declaration as you're ever going
to get in the modern world. People don't declare war
anymore, because it's illegal under the UN charter.
You declare self-defense. So all you get, whether
it's Vietnam or Korea or anything is the authorization
for use of force. But Congress very explicitly on
September eighteenth authorized the President to use
force, deadly force, against any countries, organizations
or individuals who he thought were involved in September
11th. It was not simply a declaration of war against
the Taliban or against Afghanistan. But anybody -
it was - it was an open-ended declaration if you like.
So, some people explain the Supreme Court's action
back in the 1950s, in this famous steel seizure case,
as being part of a concern that Harry Truman was engaging
in a police action to defend North Korea without an
explicit declaration from the Congress. But here you
have an open, textual declaration by the Congress.
I think one other area that where courts have to be
cautious is it's not simply a matter of construing
what Congress intended but worrying about intrusion
on what are ultimately Article Two powers of the presidency
itself. And there is an account of executive power,
Alexander Hamilton's account - very credible account.
That is kind of an emergency power which is to hold
a fort until Congress can act but still to hold the
fort and to repel immediate, unanticipatable emergencies.
And Congress has not been quick to act here other
than their initial authorization for the use of force
and their passage of the PATRIOT Act. But there are
I think courts should read statutes in ways that stay
away from the Constitutional edge of the world. And
where you're potentially constraining what will, in
an emergency, be crucial presidential powers. A rule
that says you have to passive until Congress tells
you in exact detail what and how you can act, doesn't
work very well when you have surprise attacks, when
you have weapons of mass destruction.
One
of the interesting comments that Douglas Kmiec made
was how if you look back the Supreme Court has typically
been very silent in times of war around these kinds
of issues and you're describing in a way, a Congress
that has been silent. So is there a danger here not
necessarily that the executive branch has overextended
its powers and that the other two branches aren't
stepping up to the plate? Some critics fear that the
Constitutional system of checks and balances is kind
of going out of whack. How do you feel?
Well
there's a very famous opinion by Justice Robert Jackson
in the steel seizure case, it's taught in every constitutional
law course, talking about the President's power. And
saying that the President's power is at it's apex,
at it's highest when Congress approves, at it's lowest
when Congress openly disapproves, and in the middle
when Congress is indifferent. Three-part test. I always
tease my law students and say, it's actually a five-part
test. Because you have three kinds of silence. You
have Congress's approving silence, disapproving silence
and indifferent silence. So the problem often is that
Congress just doesn't say much. And who's Congress?
There are a lot of Congressmen. You therefore, as
a court, if you were reviewing a case, have to discern
which kind of silence it is. But here you've had two
years of activity, Congress has not proposed any alternative
trial system, any alternative system for detention,
or internment of combatants.
Talk
about executive orders
Well
executive orders are published decisions by the President.
Sometimes they are classified, but usually they are
published. Sometimes they are in the execution of
the statute. A statutory delegated power. Statutorily
delegated power. Sometimes they're in the execution
of the President's own power. They're all over the
place. If you look at the Federal Register, it's filled
with executive orders, it's what administrative lawyers
in Washington D.C. make a living at, you know, worrying
about how either an administrative agency or the President
himself are going to execute a policy. There are thousands
of published orders, regulations sometimes done through
notice and comments where you put it out as a draft
and solicit comments on it, and then put it in final
form. Sometimes done without that. Which are a great
part of how we make law. Often Congress just passes
statutes at a huge level of generality, huge abstraction
- that the Federal Communications Commission should
serve the public interest. Well, that doesn't tell
you very much about how to allocate frequencies. Ditto
for a host of other administrative agencies. So, the
fact that something is an executive order or an agency
order doesn't either praise it or condemn it. It's
a way of filling out detail in areas of law making.
As Commander in Chief, the President has to give orders
all the time, he tells a new carrier battle group
to go into the Taiwan Straits or tells a carrier battle
group to go from the Sea of Japan into the Persian
Gulf. And some of those are not published because
they're part of military operations. But as Commander
in Chief with a duty of protecting the U.S., he has
to issue orders all the time that effect the deployment
of military personnel. In this case, it was the use
of an executive order to set up a court system. And
that's been a time consuming process, just as it took
several years for the United Nations to set up their
Yugoslav tribunal and the Rwanda tribunal. You have
to worry about rules of procedure, the specification
of the substance of the crimes, you have to get a
good robust defense function going, making sure you've
recruited people who will take their job as defense
lawyer seriously. Had, in this case, to recruit an
independent appellate panel, which is now chuck full
of civilians, there may be some military people on
it too but for the first four appointments are civilians
who have no need to be praised by the President. Who
have had careers and lives and distinguished pasts
and will be trusted with reviewing the record of each
trial to make sure that no serious errors of law have
been committed. And who have independent power, often
forgotten, independent power to reverse and remand
a conviction.
Given
all those things, is it disingenuous of the critics
who would point to U.S. criticisms of military tribunals
in such places as Peru, Egypt, Nigeria, and then say
that the U.S. loses it moral authority if it too starts
to use military tribunals? Is that clumping them all
together or is there any validity to that fear?
Well
I take their concern that there are many militaries
around the world that are not liberal, that are not
democratic. And therefore you don't want people disappearing
into the bowels of the Soviet Gulag or a country that
has a poor track record for civil liberties. But I
think the importance of having published all the rules
on the record. They're all on the web. The rules for
defense counsel, for the appellate panel, the elements
of the crimes, the rules of procedure, is to show
that there is a good way to do this. That there is
a way that, I mean not good in the sense that I would
much rather be at peace, but that in the exigencies
of this times, gives you a credible way to try a case,
preserve due process, and yet not expose every piece
of intelligence to al Qaeda's perusal. And having
that be a transparent set of rules was very important.
I worry sometimes that in the jot and tittle kind
of gotcha litigation style of American lawyers, "What
about this detail? What about that detail? Why not
the court of military appeals? Why is it only a former
attorney general, a former secretary of transportation,
Chief Justice of a state, and a court of common pleas,
judge of a state? Why not this other court?"
That our foreign critics, our foreign friends misunderstand,
I think at times, the gravamen of those criticisms.
And they mistake smoke for fire, detail for substance.
Rather than looking to the essential fairness of the
process. A year and a half ago, must have been March
of 2002, we had just finished the rules for the trials
themselves.
I wrote a joint op-ed for all the group we called
"The Grey Beards" all these collected octogenarians,
I was the youngest of them and the most beardless.
And I thought we'd, might make sense to do a common
statement saying we might change this, we might change
that as an individual, but overall with reputations
on the line and significant careers on the line, that
these octogenarians and others felt this was a fair
process. And I drafted it, everybody agreed to it,
I sent it around to all the major newspapers and you
know what? It wasn't news. Because at that point the
trial rules had largely been accepted. And the fact
that ex-cabinet members in dog bites man thought that
was fair, well of course it was fair. Bill Safire
thought it was largely fair, the columnist for the
New York Times. But then you get back to sort of a
my article 102 can trump your article 98 kind of a
tax code form of critique. Which I think can distract
people from the essential question - the question
that the Supreme Court would've asked in a different
age. Is this process essentially fair? It may not
look exactly like civilian court; it can't look like
the civilian court. That's the whole point of it.
But is it in sum and substance, essentially fair.
And that'll have to be judged both on the rules themselves,
and then on how they're applied. I fear sometimes
that this kind of gotcha style of litigation critique
can very much distract our allies from that view.
I think the Brits, Lord Stein, Lord Goldsmith they
assume that there wouldn't be this cacophony if something
terrible wasn't happening. And then when people say,
"well you know what, there's no real claim anybody
at Guantánamo's being treated inhumanely. We're
worried about the suicides, but no one's claiming
people are being tortured." That kind of falls
out of view when you hear a constant barrage of criticism.
Can
I read you a criticism? Particularly of Guantánamo.
This was an argument that was made in Vanity Fair.
The writer identifies what he said was a US Central
Command regulation issued in 1995, a very similar
thing to the Geneva Convention in that it said, "Instead
of allowing America merely to declare a captive unlawful
and deny him a hearing," This US Central Command
regulation that states, "a person who has committed
a belligerent action be treated as an enemy prisoner
of war until such a time as his status has been determined
by a tribunal." That seems very different than
what's going on now.
I
don't know by the particular CENCOM command but there
is a provision in the third Geneva Convention that
says in the case of doubt, that a person should be
treated as a POW until a competent tribunal has ruled
on the case. It's of curious phrase, it says, "In
cases of doubt a person having committed a belligerent
act, should be treated as a POW, until a competent
tribunal rules upon it." It takes for granted
the belligerent act. It's not designed to have a trial,
about whether he was really carrying a gun, shooting
a gun, or not. It's not a factually granular trial.
It's rather, in the commentary, said to deal with
cases like people who have lost their I.D. cards that
would otherwise identify them as members of the army.
That's one example given. The other example given
is a deserter. That the tribunal that's mentioned
in Article Five is not a civilian court, it's usually
too major as an orange crate in the middle of battlefield.
And the stated purpose of it is to get people safely
back to rear quarters. From the bad ol' days when
if you weren't a POW you might be shot summarily as
a bandit. The determination that the President made
as Commander in Chief, which is the highest level
of sobriety that you can wish for, that al Qaeda as
an army or al Qaeda as a force does not qualify as
lawful combatants is determined of their legal status.
And so too for Taliban because that was based upon
organization-wide characterizations of the Taliban's
failure on it's side to observe the law of armed conflict.
So, when people quarrel with the designation of the
Taliban or al Qaeda as unlawful combatants, they're
not quarreling individual by individual they're quarrel
- they just don't agree substantively with George
Bush's decision. But Article Five was never meant
to say that before you can be held as a combatant
you're going to have a probable cause hearing into
what you did on the battlefield, it's rather an inquiry
into your legal status. And there I think the President
made a determination, it's a reasonable determination,
Geneva Three of 1949 was not designed for non-state
networks such as al Qaeda.
Organizations
that have traced human rights report that 64 recently
released prisoners were cases of mistaken identity.
The Department of Defense reports back in the last
Gulf War they held 1200 hearings to asses the status
of captured people and two-thirds were determined
not to be combatants at all. Is that simply the price
of war? If you're in the wrong place at the wrong
time and there's enough suspicion to be swept up in
that, that sometimes these kinds of things happen?
Is it naïve to expect that they wouldn't?
Well,
we as citizens we are just deeply familiar with our
culture of hearings, and lawyers and adjudication,
and rights of challenge and there's a famous phrase
from Supreme Court case called Goldberg against Kelly,
some kind of hearing. You should be given some kind
of hearing before you lose your public assistance
benefits. Lawyers have worried about cases where the
cost of the hearing is more than the benefit that's
at stake. So you make it a very summary hearing for
a parking ticket. But still we're used to having our
day in court. You don't get your day in court before
you get shot on a battlefield. You know, as the adversary
comes over the horizon, if you're wearing a German
Wehrmacht uniform, you're defense may be that you
were cold, you're a shepherd and you borrowed it,
but if you look like a German Colonel, you're gonna
get shot. So indeed in wartime, on the battlefield,
this idea that there's a hearing before Government
can ever take any action is simply not true. Now it's
- once someone's captured what's the harm of having
a hearing. Well, it may be false expectations, again
if you're going to say that a person can stay captured
only if you can prove beyond a reasonable doubt that
they were a combatant and not a shepherd, and the
burdens of proof - burden of proof is on the government,
only eye witnesses can testify, no hearsay, it may
be so impossible a standard that it makes no sense.
Who captured Hamdi on the Northern Alliance battle
scrimmage? We don't know. At least I don't know. Somebody
caught him and ultimately Hamdi admitted to his captures
that he had had an AK47 in his hand and had trained
with the Taliban in a military training camp. Works
for me, I mean that seems to me to be a sufficient
predicate of proof that he was indeed a combatant.
But, could you prove it in a federal court beyond
a reasonable doubt with live witnesses that - who
had first-hand observation? Probably not. So you have
to, I think, give the devil it's due, in the sense
that wartime does not admit of that kind of exactitude.
Judge Harvey Wilkinson who wrote the Hamdi opinion
for the Fourth Circuit, speaks of the kind of rubble
of war. That the person who captured Hamdi may be
dead, he may be somewhere else in Afghanistan; you
may not ever know who he is. What you do know is what
Hamdi said to his captures after he was caught. And
you may have to make do with that. So, yes I take
the point that you want to prevent error to the extent
humanly possible. Modern soldiers have targeting cells
in which they have lawyers reviewing target choices.
For the very purpose of preventing the kind of unhappy
human damage that war can cause, when you shoot the
wrong person, or shoot the wrong house. But there's
a limit beyond which you can't push that. And I think
again in the attempt to marry up these two worlds
of federal criminal trials and the habits we've learned
there with the anarchy of the battlefield, that's
gonna be a difficult marriage.
Some
general questions about the PATRIOT Act. One place
there has been a lot of rhetoric is that there are
sections of the act that seem to inspire a great deal
of fear in terms of civil rights groups. Namely section
215. It's the notion that your library records, among
other records, are going to be spied on - that the
standards are being lowered. Is that the case?
Well
let me see what, by the way, one thing about the 64
people released, to go back on the other question.
Which is that there's been no public announcement
as to who was released or why. It could be that some
people were released because their own government
promised to monitor them. There's been no Scottish
- not proven certificates issued. So I wouldn't take
as gospel anybody's claim that any certain number
of people have been found to be uninvolved. You have
to be aware, obviously of the kinds of perverse incentives
that people could have in handing over al Qaeda suspects
or Taliban suspects. If you were using a bounty system
that has some cause for anxiety. But I think the incentives
to scrutinize all point in the right direction. It
makes no sense - there's nothing to be gained by holding
people who are uninvolved. And therefore the kind
of screening teams that have operated before people
got to Guantánamo, when they arrive and at
regular intervals thereafter, try to figure out who
they are, what they were doing, are the best way of
making sure that people who were uninvolved would
not be held for any length of time. On the PATRIOT
Act, one of the ironies of the PATRIOT Act is that
there was an old Department of Justice wish list largely
left over from Bill Clinton and Janet Reno and Jaime
Gorelick, a wonderful Deputy Attorney General, of
things that over the years prosecutors felt they needed
to be effective in investigations, but couldn't get.
I mean, omnibus criminal justice statutes don't pass
every day of the week. So, much of the content of
the PATRIOT Act is stuff that people felt they needed
before 9-11 to adapt to technology. For example, throw
away telephones. If I have drug dealer who using a
cardboard phone, he makes a call; he throws the phone
away; he gets another ten-dollar phone. Does it really
make a difference to privacy if I tap him as opposed
to his telephone? Isn't the invasion of privacy the
same? So that ongoing process of having to adapt principles
of privacy to new technologies is one that's been
felt before and re-felt again. And 80 percent of the
PATRIOT Act is just that.
The other part of the PATRIOT Act, I think, is the
attempt to make intelligence investigations more efficient.
To allow folks who are looking at things on the intel
side of the house, to put together the mosaic, the
circumstantial evidence, the strange pattern of practice
that let's you know what a network is doing. And get
records in real time. With all the privacy legislation
of the '60s and '70s, basically a Federal Bureau of
Investigation agent can't function without a prosecutor
at his elbow to give him grand jury subpoenas. And
you don't have to go to the grand jury to get it voted
every time, but you have to write it out in the name
of the grand jury. But that means you have to do things
on the criminal side of the house. What happens if
you want to put together an intelligence investigation
to see what kind of pattern you have of al Qaeda suspects
entering the country, going to flight school, renting
lockers, downloading material about wiring diagrams,
shouldn't an intelligence investigation be able to
do that too in real time. And that has been the source
of most of the sort of the administrative subpoenas,
administrative summons that have been questioned in
the PATRIOT Act. I think here, people take litigating
positions. If I was a librarian - I love books, I
collect books; I spend the bulk of my disposable income
on books. Other than the stuff I buy my kid. But libraries
- libraries offer lots of services now days. They're
a little bit like Kmart. They have computer terminals
where you can download things from the Internet or
send e-mails. So if you had an al Qaeda member who
entered the country, moved to Florida, and was using,
not just the Kinkos in his county, but the county
library as a method to communicate with his fellows,
wouldn't you want to be able to get information from
that computer? Why don't you just bring -? For the
record before the Congress that in fact the library
- the power to look at library records had never been
used. And there's no winning for losing that was then
harnessed as proof he didn't need the power in the
first place. Well, if you have an al Qaeda guy who
went to the library to check out a book on how to
build a bomb or to use the library Internet to communicate
with a fellow, you'd want to be able to access that.
And yes you do it cautiously anybody who's at all
familiar with the kind of ethos of law enforcement
knows that the intrusiveness of the technique should
vary with the seriousness of the occasion. But if
in real time you felt the need in hot pursuit to figure
out who he was communicating with or whether he checked
out a book on fissile material, you'd want to have
that power. And there is I think a kind of line in
the sand litigating position that groups like the
library association take up that you may never, ever
under any circumstance enter a library to gather information.
And that's I think, that's an excessive absolutism
that doesn't take account of how adaptive networks
can be at using the resources that are at hand.
One
of the things that surprised me in the criticism of
the PATRIOT Act is in terms of the '90s. It's my understanding
that this has been used before in the Son of Sam case
and the Unibomber case where access to library records
has been granted. Why do you think so much opposition
has mobilized around this act and not the 1996 Terrorism
Act that set many of these things in process? This
doesn't happen in a vacuum, this is a continuation
of things and yet you didn't see that.
No,
one of my concerns is somehow adapting to a very practical
problem which is al Qaeda, has become mapped onto
some great cultural war of he said, she said, Republican,
Democrat, liberal, conservative, liberal, right wing,
whatever you want to call the opposition sides. Libraries
have been amenable to grand jury subpoenas since I
was a prosecutor. If you think that there's material
that's pertinent in a library's records, there's no
privilege that says that a library is absolutely like
a lawyer's office and even a lawyer's office, if you
think that there is the office has been used as an
instrumentality of a crime, you can get a search warrant
for a lawyer's office. You can get a grand jury subpoena
for a lawyer's office. Everything's relative. If you
set up free zones, then it's just a fact of human
nature that people try to use those free zones, those
safe zones for purposes that are illicit as well as
licit. So, no the irony to me is that twenty years
ago you could get a grand jury subpoena for a library.
You'd have to have a prosecutor write it out, if he
were feeling dainty you might have the grand jury
vote it specifically, but most grand jury subpoenas
are issued without the grand jury taking a vote. There
have been administrative guidelines from time to time
in the Department of Justice to try to make sure that
the more intrusive techniques are not overused. When
do you have to go to your supervisor to get a sign-off?
When does an agent have to talk to a prosecutor? But
there is no free zone because other - if there were
the mob or a drug dealer or in this case a terrorist,
might very well find that a convenient place to use
for organizational purposes. Now in a trial, traditionally
a judge would have been loathe to admit into evidence
a book, because you want to let your teenager to read
Jerry Rubin's Steal This Book, or you want to let
your kid read crazy stuff. But if you have a book
in the context of a pattern of facts where somebody
is clearly talking in code about trying to put a bomb
in Grand Central Station, then the fact that they
both bought the gelignite and checked out a book on
a wiring diagram are both pertinent, and a judge would
let it in. And it would be probative.
To
paraphrase an ACLU argument, they wouldn't disagree
that some of these unnecessary barriers needed to
be eradicated but what they would maybe argue is the
standards of proof have been lowered too much to a
place where they're not comfortable? FISA, for example.
The
standard of proof hasn't been changed. What the Foreign
Intelligence Surveillance Act court has required in
the past is that you be surveilling a foreign government
office. Doesn't require much more than that. Now you
can also surveil a foreign terrorist network. You
still can't surveil a lone wolf. One of the issues,
both of foreign government surveillance in the old
days and foreign terrorist surveillance now is whether
an American person might be part of that network.
If he's the direct object of the overhear. And you'd
have to show probable cause that he was. But the standard
is still that either the overhear would have to be
incidental, accidental, unanticipated, or if the person
was the direct object of the surveillance, that you
show by probable cause that he's an agent of a foreign
power or agent of a foreign terrorist network.
