A formula for which civil rights stop terrorists and which don't.

A formula for which civil rights stop terrorists and which don't.

A formula for which civil rights stop terrorists and which don't.

The law, lawyers, and the court.
Sept. 5 2002 6:33 PM

9/11 and the Law

Sacrificing civil liberties to fight terror: not without a fight.

Illustration by Robert Neubecker

There have really only been two articles written all year about Sept. 11 and civil liberties.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The first article details some new government violation of a constitutional right, then agonizes about rampant unchecked federal powers. (See, for instance, this piece by Nat Hentoff, or by yours truly, here or here.) The other piece argues that the domestic criminal-justice system is inadequate for fighting a "war" on terror and suggests increasing the executive branch's war powers to include some new unconstitutional tool. (See, for instance, Douglas Kmiec defending secret military tribunals, or—consistency being the preoccupation of teeny, tiny minds—my thoughts on torture).

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A third piece surfaces occasionally, suggesting that both the criminal-justice system and the president's war powers are inadequate to halt terrorism and casting about for some new, innovative mechanism to deal with this crisis. (Charles Krauthammer made a hybrid proposal; I made a facetious one.) These attempts to seek some third way out have one strength—they explode the false choice dominating our discussion on terrorism and civil liberties: that in prosecuting terrorists, we are trapped either in the rubric of domestic crime-fighting or in all-out war. This approach recognizes that criminal investigations and trials are not enough to stop another Sept. 11, but it acknowledges that we are not in a war triggering executive powers without limit.

Anyone who's followed the Zacarias Moussaoui trial knows the domestic criminal-justice system is too subtle a tool for dealing with terrorists. First of all, many of the alleged terrorists we are holding had only limited knowledge of any specific plot; had we tried some of the Sept. 11 hijackers a week before the events, we could not have obtained a conviction. Second, some of these "plots" were at such early stages that no criminal act or agreement was ever manifested. Our criminal law generally punishes past bad acts, not prospective ones. It is simply not adequate for incapacitating the member of a Detroit sleeper cell who's done nothing wrong beyond dreaming each night of killing thousands of civilians. Under existing law, he is not yet a "criminal." True, we can torture RICO and other existing laws to somehow nail the Moussaouis and Padillas we have captured—a suggestion made in Slate by Robert Weisberg. But the frank truth is that giving terrorists access to open courts, adversarial proceedings, full and free discovery, and the protections afforded criminal defendants will largely make Americans less safe.

But those who argue that we are at war are also mistaken. Not only are we not engaged in a conventional war with an identifiable nation-state as contemplated by the Geneva Conventions, but we are not even at war as a legal matter, which requires a formal war declaration by Congress and the triggering of the War Powers Act. There is no enemy in uniform, no combat on the beaches, no chance of an armistice someday. Merely calling whatever this thing is we're engaged in a "war" on terrorism does not make it so. If we were really at war, we could just haul out our guns and shoot the shoe bombers and the dirty bombers as they stepped off the airplane. To quote Michael Chertoff, the DOJ official behind so many of the government's anti-terrorism initiatives: During the battles of Midway and Normandy, "American soldiers weren't asking judges permission before shooting enemy soldiers or taking them into detention." (If this appears to be an argument for summarily executing alleged enemy combatants, it is Chertoff's, not mine.)

So, if we are neither at peace nor at war, what are we doing to stop these terrorists? It's the imaginative and conceptual failure of both the government and the public that has led us to this swampy middle ground where the state avails itself of the worst of both worlds. The rhetoric of war has allowed the Bush administration to cherry-pick among the tools and rules from the arsenals of both the criminal-law and war machines. In declaring this "war," the president and John Ashcroft have seized the executive authority of wartime and used it mainly to distort the domestic legal mechanisms of peacetime.

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This is hardly surprising. Every president goes a little bonkers in wartime, and it's the job of Congress and the courts to rein him in. But Congress has already failed dismally. Pushing through the bizarre PATRIOT Act—mostly just a John Ashcroft crime-fighting shopping spree—Congress, with little discussion and almost no dissent, utterly failed to ask the routine questions such a dense and sweeping piece of legislation demanded: "Why these particular measures? Why not others?" wasn't heard. "How fast can we pass this and start kicking some al-Qaida ass?" was the only inquiry going. As a result of this congressional abdication, the executive branch has made America "safer" by implementing the following measures: Now "material witnesses" can be detained indefinitely without judicial review, and the number of such witnesses can be kept from the public. Suddenly 1,200 noncitizen residents can be detained indefinitely without charges. Immigrants can be detained without suspicion. The government may now eavesdrop on attorney-client discussions if it suspects "terrorist activity." The government has also granted itself the right to unilaterally designate anyone—including two U.S. citizens, Jose Padilla and Yasser Esam Hamdi—as "enemy combatants" and to lock them up indefinitely in military prisons without charges or the right to question this designation. Space is right now being cleared in military brigs to house more such combatants at the president's whim. The PATRIOT Act authorizes investigators to seize medical and academic records as well as book purchases and loans records from libraries. The FBI has unprecedented powers to monitor Internet communications, to infiltrate public gatherings, and to follow leads without oversight. The act authorized roving wiretaps (taps not tied to a specific phone), sneak and peak search warrants (that do away with the requirement that the target be notified),and the sharing of information obtained without a warrant between prosecutors and intelligence investigators. The president also generously handed himself the right to create secret military tribunals, which subvert the rules of evidence and the presumption of innocence, and named himself the sole arbiter of appeals.

To be sure, many of these measures have been and will be challenged in courts over the coming months. And a surprising number of these policies have already been invalidated by the lower courts. The Justice Department moved swiftly; justice itself will be slower. But courts and the public have historically been as willing as Congress to defer to the president in wartime. And it is this very deference that is so dangerous. We have been unwilling to say what is most obvious: that there has been no principled, cogent explanation by the government of why they need these specific powers to fight terror. If there is some principled reason that the Justice Department could not release the names of the 1,200 noncitizens held without charges, without jeopardizing national security, I have yet to hear it. Ashcroft's pretext—that he was protecting their right to privacy—was laughable.

Even more terrifying than this creeping arrogation of domestic surveillance and detention powers, and the lack of a public outcry, is the secrecy with which the administration has acted. A Cato Institute report details "secret measures antithetical to freedom, such as secretive subpoenas, secretive arrests, secretive trials and secretive deportations." Secrecy is no longer a means to any discernible end but is an end in itself. When President Lincoln suspended the right to habeas corpus and President Roosevelt interned tens of thousands of Japanese-Americans, at the very least, these acts of homeland security were undertaken boldly and publicly. But the Bush/Ashcroft fantasy seems to be to sweep this "war on terror" behind curtains and under carpets. Military tribunals and indefinite detentions happen in secret military facilities—away from judicial oversight. Ashcroft's effort to co-opt the secret FISA Court for his own criminal prosecution purposes happened in a secret pleading. The administration sought blanket permission to close deportation hearings to the public. It is not at all clear that we are safer from foreign terror simply because the government moves all the machinery of a democracy into dark, locked chambers.

The clearest response to this effort to fight an entire terror war behind closed doors came from the 6th Circuit Court of Appeals, who last week held that the press and public may not be barred from deportation hearings for those detained in connection with Sept. 11. The Justice Department sought such extreme measures as sealing all information about the detainees and refusing to acknowledge that hearings were even taking place. The court found that while the government may sometimes need to close some hearings and implement security measures, it is antithetical to democracy to close them all as a matter of course. In so ruling, the court did precisely what courts do best: It weighed the government's stated interest in closed proceedings against the constitutional rights being burdened, and it made a call as to which won out. Because they have 200 years worth of experience and tools to perform these delicate calibrations of government interests versus constitutional rights, the courts remain the best possible check on overreaching by the executive branch.

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While it's true that the courts have often lain down and refused to make these determinations during wartime (consider the gutlessness of the Korematsu decision), it is not true that they should do so this time. The old mantra that "courts traditionally defer to the executive branch in wartime" should not be trotted out again as a normative statement of the role of the judiciary. Because, oddly, that sentence inevitably follows the sentence about what a national disgrace the Japanese internments were, as if there were no causal connection between the two.

It is not a lot to ask that if this "war" on terror is to continue, this simple test be instituted: Civil liberties may not be suspended unless some principled government objective is articulated and the proposed measure is carefully tailored to meet that objective. If the government feels that giving Yasser Esam Hamdi access to an attorney imperils American security, it should tell us why.

In a recent Gallup Poll, 60 percent of Americans said that the president is "about right" in restricting our civil liberties to fight terrorism, and 25 percent say he hasn't gone far enough. Why is the public willing to accept this secrecy and arrogation of power? Well, because we're terrified, for one thing, but also because we have come to believe that increased security usually requires sacrificing civil liberties. While this is true, the converse is not. Giving up civil liberties—any and all of them, indiscriminately—does not necessarily bring security. We will not be safer from terrorism if the government restricts our right to vote. And we are not necessarily safer because the state has done away with the right to judicial review.

Ordinary criminal courts will not suffice to stop the next terror attacks. But random government seizures of constitutionally protected rights won't stop them either. We will simply be afraid of both the terrorists and of our government. Whether we are at peace, at war, or in something as yet unnamed that lies betwixt the two, we must continue to demand a rational, principled accounting of where each of our civil liberties is going and why.