The Cost of Freedom -- Civil Liberties, Security and the USA PATRIOT ACT

photo of Douglas Kmiec

Subject: Douglas Kmiec
Interviewer: Alison Rostankowski
Transcripts: Pat Ostermick

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 of The Duncan Entertainment Group 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 gotten 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 which 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 has Jose 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.