Leon Scioscia:  
Good afternoon.  My name is Leon Scioscia and I'm with the Law Library.  And I'd like to tell you that today's presentation will be recorded for the Internet, and it's my pleasure to introduce to you the Law Librarian of Congress, Dr. Rubens Medina.

[ applause ]

Dr. Rubens Medina:  
Thank you so much, Leon.  We are delighted to be instrumental in disseminating these panel discussions about law, justice -- and peace, I think we are talking about.  When we say law and justice, invariably we are implying peace, I hope.  All right?  And so we are very much supportive of these discussions.  Today we have with us -- and I am very pleased to welcome all of you to this event.  

Sorry that the snow probably is preventing some of our friends to be with us at this time, but I am very pleased to be able to introduce our distinguished panel today; our already well-known colleague, Louis Fischer, is our Constitutional law expert and very deeply concerned and involved in studies on several issues about the U.S. Constitution.  We are trying to help Lou to compare our Constitutional legal standards with some other standards around the rest of the world.

Our panelists today are two very bright and very dedicated thinkers in this field.  We have Ms. Heather Sawyer, a graduate from Dartmouth College and the University of Chicago Law School.  She has taught at Northwestern Law School, Loyola University and the Georgetown University Law Center.  Prior to joining the Federal Legislation Clinic at Georgetown, she was Senior Counsel for Lambda Legal Defense and Education Fund at its Midwest office.  Currently, she is Counsel with the Subcommittee on the Constitution of the House Judiciary Committee.

With her we have Mr. Daniel Huff, a graduate of the University of Toronto and the Columbia Law School where he was a Harlan Fiske Stone scholar.  He was an associate at McKinsey & Com before coming to the Senate Judiciary Committee as Crime and Oversight Counsel.  He is the author of a recent law review article on the Confrontation Clause in the Nebraska Law Review, and handles a variety of national security issues for the Committee's minority staff.  

Even though I know this is printed in our program, I just wanted to make sure we all heard about who these distinguished panelists are.  And now it's my pleasure to introduce our very own Lou Fischer.

Louis Fischer:
Thank you.

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So, all three of us are presenting our own personal views; not the views of committees, and not the views of the Library of Congress, for me.  What we're going to start off doing is, in about five minutes each, maybe five to seven minutes each, try to build a framework to see where this term "extraordinary rendition" fits in, how it differs from rendition, how it differs from extradition, how it differs from forcible abduction.  

And then there are three topics after that for us to go through.  One is, after the program was made public in the Washington Post in December 2004, Europe became very concerned about this, and it led to a trip by Secretary of State Condoleezza Rice to Europe to try and quiet things down.  The next step is to look at litigation on extraordinary rendition, and the last step is what Congress might do legislatively.

Okay.  On my stab at the framework, two things that interest me is the source of power for the President to transfer an individual from one country to another country for interrogation.  And depending on the country, there's likely torture, possible torture or just plain torture.  So, source of authority is interesting to me.  And then I would make the distinction on all the other categories we have: extradition, rendition, forcible abduction.  These are all for the purpose of bringing someone to trial where they would have access to procedural safeguards, whereas extraordinary rendition is not for the purpose of bringing someone to trial, but for interrogation.  So those are some basic distinctions.

As I look at the history in the United States, Presidents and Attorney Generals always recognized that the President had no independent authority to take a person in this country and return them to another country; that how that was to be done would be by a treaty, by an extradition treaty, sometimes supplemented by statute.  But there had to be a legislative policy to guide the President.  And Secretary of State Thomas Jefferson explained some of the reasons for that.  Just because someone is here, a fugitive, and another country wants that individual, doesn't mean that you should automatically turn the person over.  And it may be a country that is abusive toward individuals.  But even a country, at that time, as advanced as England, Jefferson pointed out a problem, that in England someone was subject to a death penalty for stealing a rabbit.  And Jefferson felt that that was disproportionate, and the United States would make up its own judgment as to who would be returned and for what reasons.  

So, typically an extradition treaty will say that you can return someone charged with murder or certain other specified crimes, otherwise this country would be sharing in the fault of another country who is abusing someone.  So it's all spelled out in advance.  Many, many Attorney Generals over the years looked at this and said that the President has no independent authority to do this; he needs a treaty or a statute; many Secretaries of State making the same judgment.  

There was an exception, an interesting one, in 1864.  There was a Lieutenant Governor in Cuba, in Colon, who intercepted a ship with about a thousand slaves and got the support of the Lincoln administration.  Then he came to New York City, supposedly to buy a newspaper.  And then the information came out that when he said that 141 slaves had died, that that was not good information; that in fact he had sold 141 into slavery.  And this is 1864, in the middle of a Presidential year where Lincoln has just been renominated, and it caused a lot of embarrassment.  

Both the House and the Senate requested documents.  I always knew the House has the resolution of inquiry, and never thought of the Senate doing that.  But indeed, in this case the Senate passed a resolution saying we want documents explaining what happened here.  And the administration did that.  A pile of documents came to explain the basis.  And indeed, the Secretary of State said that the President does not need authority of a treaty or a statute; that the authority in this case came from the Law of Nations.  The Law of Nations is mentioned in the Constitution, but in Article 1 under Congress, not Article 2 under the President.  Anyway, there is a different case of 1864.

Prisoners of war is another category.  In 2004, John Yoo, who had been in the Justice Department in the Office of Legal Counsel, wrote an article in the Notre Dame Law Review.  It was called "Transferring Terrorists."  And since this is a 2004 article, it probably doesn't connect to extraordinary rendition.  That didn't hit the newspapers until December 2004.  I suspect what John Yoo was writing about was something that happened a year or two before.  It was called "ghost detainees."  In Iraq, the International Red Cross would have a right to come in and check on their status.  And suddenly some of them were not there.  They were called "ghost detainees," and I think that's what John Yoo was justifying.

Anyway, he made two points.  He said that the President is not acting without constraint, and the second is that there are many precedents for this.  Indeed, the article has many precedents.  As I read it, he was talking not about extraordinary rendition of taking someone to a country for interrogation, but Presidential authority over prisoners of war where Presidents would take detainees or prisoners of war from one country to another.  So I don't think it connects.

Last thing -- and then I'll turn it over to Dan and to Heather -- there is this idea of forcible abduction where you go into one jurisdiction and grab somebody and take them into another jurisdiction, always for trial, however.  And in this case it got to the Supreme Court in 1886, actually going from South America to the United States, and then later in 1952 from one state to another state.  And the law has all these wonderful words, and the guidance here was the doctrine of non-inquiry; namely, the court would say, we're not going to inquire how you got the person into court, whether you grabbed him, whether it's legal or not.  The person's in court, and we will proceed.

And there was a 1974 case, Toscanino, where again they abducted somebody from South America, brought him to the United States.  And it wasn't under very pretty conditions, and the Court, the Second Circuit, backed away, like, "Do we want to get ourselves implicated in what was done here?"  And that was sent down to the district court, and really not heard of since then.  So this is forcible abduction, but again, for trial, not for interrogation.

There is a period under Clinton, we know a little bit about it, starting in 1995.  We have a few things released.  A lot of it is redacted, so we don't exactly know.  But something was going under Clinton, starting in 1995, in terms of forcible abductions.  And I think something fundamentally different happened after 9/11, but we'll get into that.  

So, Dan, why don't you take it from there?

Daniel Huff:
Thank you.  First, I want to thank Mr. Fischer and the Library for the invitation, and Ms. Sawyer for joining us, and all of you for braving the snow, and I reiterate his disclaimer that these are my own views and not those of the Committee Senate.

It seems to me that a good place to start is the opinion of Mr. Justice Jackson and his concurring opinion of a famous case called the Steel Seizures case, Youngstown Steel.  And what Justice Jackson does there is that he essentially analyzes Presidential power by classifying the activity in one of three categories.  First category is where the President is acting at the direction of Congress.  And there the President's power is the highest, because Congress has passed a statute, "Do X."  The President is doing X.  That doesn't concern us here.  I don't think anyone would maintain that these extraordinary renditions are pursuant to an act of Congress.

The third area -- I'm skipping one, you'll see in a moment -- the third category he sets out is where the President is acting contrary to an act of Congress, whether explicit or implied.  And he says there that the President's power is at its lowest.  Of course, it's clear because the President can oppose a Congressional statute only on the grounds that he has some sort of inherent Article 2 power.  

Now, I think that people like John Yoo, mentioned before, [ unintelligible ] this idea of the unitary executive, the power of the President is essentially plenary.  In military matters it's full; he can do whatever he wants.  They take this view that notwithstanding any other Congressional statute, the President has power and he can essentially override it.  And you've heard these discussions with respect to FISA in the past couple months.  

Now, I don't take that view.  I'm not going to argue it here.  I think it's very difficult to maintain, especially given recent Supreme Court decisions.  However, I do think that the issue of extraordinary rendition falls into the second category that Justice Jackson lays out, and this category is what he calls the zone of twilight, where both Congress and the Executive may have some power.  And he says, I think it's quite right, that the exact distribution in these types of situations where both have claims to authority is going to depend more on sort of the exigencies of the circumstance, the prevailing political ideas, the mood of the public, and not so much on sort of abstract notions of why.  

And while I'm not comfortable with all that's been going on with extraordinary rendition, I think the position -- it might be helpful for me to give the following perspective today.  I think that these types of things, the extraordinary rendition, does fall into the second category.  And I hope to demonstrate that the President's authority derives from his Article 2 power.  I know that Mr. Fischer has tried to distinguish John Yoo's article, but I think the statements about the precedent of historical practice with the President determining the disposition of detainees is quite important, and I'll get to that in one moment.

And I would say, secondly, that there are various treaties which might impinge upon that power.  Even if you might agree that a President can generally dispose of detainees as he sees fit, certainly there may be certain other things which oppose it explicitly, especially the UN convention against torture.  And I hope to show also that there are plausible explanations, interpretations of the statutory language, such that the extraordinary renditions do not expressly violate them.  And while it's true that Congress could come in and make it clear and say it does violate it, under the current situation, in a time of war, I think it's important that if there are two reasonable interpretations of a statute, one which would justify a President's actions and one which would not, he is entitled to the benefit of the doubt.

And I just want to reiterate that because I say he is in the second area, he is not claiming inherent authority that cannot be superseded.  If Congress wished -- and we'll get to that later -- Congress could come back and be more explicit and say, "No, you can't do this."  But under the current situation, if it's not clear, we can interpret ambiguous things to say, "He can until told otherwise."

Now, John Yoo, in his article, sets out numerous historical examples.  So I won't go through all of them, but I think some of them are quite helpful because while it's true that he does discuss prisoners of war, he discusses many different conflicts.  Some were declared, some were not declared in certain situations.  For example -- hold on one moment -- the President had authority, I believe, in -- written all these things down here.  But in Operation Just Cause in Panama, not too long ago, 4,000 military detainees were accorded POW status, but as a matter of policy and not as a matter of law.  They were then transferred to the control of Panamanian authorities.  And that was an example, of course, of an intervention that was neither a declared war, nor were these people accorded POW status as a matter of law.  And yet the President still had the authority to transfer them.  That's one example.

The other one is World War II.  There were large-scale prisoner transfers during World War II, even after hostilities had ended.  In fact, he mentions in his article that after the Victory in Europe Day, the U.S. transferred 1,300,000 prisoners of war to France, Belgium and Luxembourg to work on public works projects.  And while, again, that was a case of POWs, it's also true that it was after the end of the hostilities.

Another example is during the Spanish-American War.  It was the administration of the War Department which planned and oversaw the disposition of prisoners, and it attested that it had begun planning even before the start of hostilities.  And importantly, during the subsequent occupation of the Philippines the administration decided how to handle various Filipino insurrectionists who were essentially either told to swear an oath of loyalty or deported to Guam.  But what's the point there?  That this is essentially after the main hostilities.  These are insurrectionists who are not necessarily formally opposed, and yet the President had some authority to determine where they ought to be sent.  

And you could say to me, "Well, this is all good and well.  Maybe you're right, and the President has some authority to determine the disposition of detainees."  But what we're talking about here is sending them to a location where they're going to be put in harm's way, to interrogate them in a manner which would not ordinarily be permitted in the United States.  And to this I'd say several things, but first, just interestingly, during the Civil War, again, as the administration, President Lincoln, who made various arrangements with respect to where the prisoners from the Confederates would be sent.  Now, toward the end of the war, in January, I think, of 1865, it came to the attention of Congress that Union soldiers held in custody by the Confederates were being mistreated.  

And so they entered Senate Resolution 97, which was a resolution advising the President -- not telling him, because there is some Article 2 inherent power here -- "advise a retaliation for the cruel treatment of prisoners by the insurgents."  And I know that now when we think about the problem of preventing our enemies from mistreating our people, we say we have to treat their people very well so that they'll reciprocate.  But it's just interesting to note that, I think, in 1865, this resolution was passed encouraging retaliation, a tit-for-tat tactic.  

And just reading a minor bit here, it says that "It's the judgment of Congress that it's justifiable and necessary that the President, to prevent the continuance and reoccurrence of various barbarities, should subject the people in our custody to essentially..." -- essentially to starve them, basically, and to diminish the amount of clothing, fuel and medicine and medical attention they get, and that the people who are placed under control should be under the keeping of the men who have themselves been prisoners in the hands of the insurgents, and thus acquired a knowledge of the mode of treating Union prisoners.  So the retaliation should be tit for tat, and it should be administered by people who themselves suffered at the opposition's hands.  But the point being that this is advice to the President.  And in fact, it says here explicitly, "Nothing here is meant to diminish the President's authority, in these matters, which is already there."  

So if the President can himself retaliate against prisoners, it stands to reason that he could send them somewhere else where they won't be retaliated against, but may be subjected to harsh treatment, at least according to the original understanding of things.  And so I think there is a clear historical precedent for the President's general authority to dispose of prisoners.  Now, it's true that they're not necessarily taken from the battlefield, but that has to do with the nature of the battle against al-Qaeda; they're dispersed throughout the world, that they're not isolated in one place.  And while you can come up with various examples of people who are erroneously taken, you can also give many examples of people who are justifiably grabbed.  And so there is a threat.  It's out there.  It's dispersed.  

And so I think you have a plausible argument that the President's Article 2 power, an inherent power, is there to conduct these types of things.  But again, I stress that when I say "inherent power," I mean he has the authority, but it's in this middle ground where Congress could, you know, cut around the edges and say, "You can't do certain things."  And I think that avenue is still open, even though I'm claiming it's an inherent power.  I will also add that Mr. Fischer mentioned earlier that this is different from extradition, and that Jefferson made certain comments that we're not going to recognize the laws of these other countries and simply allow the President just to extradite somebody who is wanted.  

But I think the reason for that is the concern for American sovereignty.  And if you look at the language there, he says essentially that, you know, our laws are not their laws.  And what's the concern?  The President executes the laws of the United States.  He does not execute the laws of foreign countries, which is why, in order to send someone for trial or for process in a foreign country, it must be pursuant to a statute of the United States, because otherwise he would be executing foreign law.  He wouldn't be executing American law.

However, so much is not the case here.  Here, rather than acting in derogation of sovereignty, the President's acting in defense of it.  And so I agree with his distinctions, but I think they just go more to my point, which is that the President is acting under some inherent Article 2 power which may be infringed upon by Congress but currently is not, and therefore it's quite justified, and the same things in certain other articles that were written.  You mentioned the Arguilis [ spelled phonetically ] affair, the situation with Cuba.  Now, that was during wartime.  However, it essentially had nothing to do with the Civil War.  I'm not going to go through the facts again, but essentially it was somebody who was wanted by Spain.  

It had a tangential relation in the sense that it involved the slave trade, but it had nothing to do with the Civil War, and so President Lincoln was rightly criticized for this extradition because, again, he was enforcing a foreign law without authority of the Congress.  That's not the same thing as saying that if he'd, you know, made some transfer of a Confederate soldier who was clearly on the other side in a time of war, that would likewise be criticized.  In fact, he did authorize various transfers of Confederate soldiers, and it was not criticized at all.  And so, again I distinguish all those cases, and I think that only serves my point.

I'm probably running out of time.  I just want to say very briefly that the main objection to my argument, I think, then, is the U.N. Convention Against Torture which was implemented by various legislation that Congress has passed, which, in thinking about that, you have to keep in mind two things.  Number one, it essentially prevents a signatory from subjecting a person to torture or cruel, inhuman or degrading treatment.  Now, that's true, but we're not discussing that with extraordinary rendition.  We're talking about sending someone to another place where the person is so subjected.

Now, UNCAT, the U.N. Convention Against Torture, also prohibits that, but only with respect to torture.  And the precise language is to "extradite, expel or return."  And I want to point out that in most of these cases -- and Arar is different, and maybe we'll discuss that a little later -- but generally speaking, it is not an extradition, as Mr. Fischer has pointed out, because it's not through formal legal means or for process.  Secondly, it is not a return unless you are bringing a person back to the place where he was a resident or citizen.  As I say, Arar is different because he was a citizen of Syria and sent back there.  But in most cases that's not the case.  And certainly the President could arrange it so that that didn't occur.  

And the last thing is "to expel."  Again, expel is generally taken, to expel someone from your own territorial jurisdiction.  Again, Arar was expelled, and he was returned.  But if you take someone from a foreign country, that person is not expelled because it's not within the territorial jurisdiction of the United States.  So strictly speaking, there is no violation of a statute in an extraordinary rendition from Country A to Country B, even under UNCAT and its implementing legislation.  And again, you may say to me, "Well, that's a very narrow construction.  I want to take a broad construction."  But I fall back on what I said initially, which is that in a time of war, where we're fighting this enemy, if there are two constructions, and one would permit it and one would prohibit it, take the one that permits it.  The President is entitled to win where it's a tie.  And we'll talk a little bit more about what Congress can do.  

And so let me just close by saying again that while I say that there is authority in the President to take this action, it's not to say that authority cannot be somewhat diminished by an act of Congress, because again, it's in this twilight zone where things depend upon the general perception.  And I do believe the general perception right now is that the administration is not to be trusted on these matters, and therefore they do need greater oversight.  But that's certainly a problem of their own making; it's not to say that there's no Article 2 power in the President.  Thank you.

Louis Fischer:  
Thank you.

Heather Sawyer:  
Okay.  All right.  Well, I thank all of you for coming and joining us in this dialogue and discussion.  And I'm looking forward, actually, to the point in time when you guys get to actually participate in that.  And I have somewhat of the benefit and the burden of getting to go last.  So I'm going to both try to talk a little bit about how I would frame it, but also respond and join in to some of the things that my colleagues have said here.  One of the things I often find useful when we're thinking about any of these questions is really kind of overall, what is the framework?  What is our fallback framework?  Where do we come from as a country, as a nation?  And what I often hear people talk about is the rule of law.  And we are a nation that respects the rule of law, and the rule of law is paramount.  

So I, in digging around, wanted to see what, if anything, any of the agencies were saying about this rule of law.  How do they articulate it?  So I did a poll, and I'm going to show it to you so you can see that it's bound by a set of clearly defined and universally accepted laws.

In a democracy, the rule of law is manifested in independent judiciary, a free press and a system of checks and balances on leaders through free elections and separation of powers among the branches of government.  And I wanted to just start there because I think that this conversation, like a lot of the conversations that we're having in this contemporary time, implicates a lot of these really important concerns, and certainly when we talk about renditions.  And we're talking today about extraordinary rendition, and you sometimes hear it called extraordinary irregular rendition, rendition to torture as opposed to rendition to justice, and it's hard to know exactly what characterizes one from the other.  

So I'm going to tell you.  For the purposes of what I am talking about, there are some fundamental presuppositions as to what an extraordinary rendition entails, because rendition really just is the transfer of a person from one place to another.  And extraordinary, to me, is a rendition that comes at the request of the transferring state; it's not at the request of the state to which the person is transferred.  And that, in and of itself, does distinguish it from extradition and from rendition to justice, because rendition to justice really is at the request of a receiving state, pursuant to some sort of legal process.  

It's also not, in that same vein, designed, really, to bring someone into the system of justice.  It is designed for other purposes; sometimes for purposes of detention, sometimes detention and interrogation.  But it's not pursuant to a warrant, pursuant to belief that there's been a criminal indictment or a conviction in absentia.  And it is, in contemporary times, often two places where there is a risk or a likelihood that someone will be subject to extremely harsh treatment and torture.  And to me, that's what makes what we're talking about extraordinary.  And so it does distinguish, and it falls within the evolution of what my colleagues have talked about, the practice.  And obviously, historically, the idea that we would transfer people -- and again, there are different contexts, and different laws come into play.  You can transfer someone from within the U.S., you can transfer someone from outside the U.S. into the U.S., and then you can transfer them from another foreign state to yet another foreign state.  

And something I find remarkable, just remarkable, is that we are often asked and told that we have to defer and consider the war time powers of the President in determining whether or not there's affirmative authority to act.  And again, I'm speaking for myself, but maybe I personally would be able to accept that argument if at the same time I was being told that because we are in war time, we are going to abide by the Geneva Conventions.  Now, nothing in the discussion so far has noted the fact that if we are in an active war time, if we're in armed conflict, if we are going to consider some of those protections, and maybe all of those protections to apply, because the Geneva Conventions do have requirements regarding the transfer of prisoners of war and of protected persons who are civilians who are captured in occupied territory.  

And I would certainly contend that with regard to folks who are captured in Afghanistan when we were in armed conflict in that territory, or in Iraq, the Geneva Conventions should apply.  Now, we have heard the administration argue that the Conventions do not apply; that prisoner-of-war status doesn't apply to Taliban, and that the Conventions, writ large, didn't apply to any member of al-Qaeda.  Now, that argument, that's certainly with regard to Common Article 3, which does prohibit torture and other egregious treatment, inhumane treatment; that Common Article 3, the Supreme Court has said, does apply even to al-Qaeda.  But the Conventions themselves do limit the authority of the President to act, even if it is in a time of war.  So I think it's just false to claim that there are not limitations on the President's powers to act, even if we are to grant that we're in this time where there should otherwise be granted some deference, even if it's deference in interpreting the laws.

And one of the things I was going to focus on is that there is affirmative legislation, and it is in the Convention Against Torture and the implementing legislation where Congress has spoken to the contrary.  So I would contend, actually, that we're not in that zone of twilight, although I would guarantee you that some of these folks who have been sent to other countries, either from the U.S. or otherwise, would believe they're in "The Twilight Zone."  But I would contend we're not in the zone of twilight because we're in that third category where Congress has acted.  Now, we have to look at and interpret the way in which Congress has acted, and determine whether the President has acted within the scope of what Congress has authorized.  But we are not in the second category, the zone of twilight, or "The Twilight Zone" if you are Mr. Arar or Mr. El-Masri.

Now, within that, you know, I would agree, certainly with Dan, that there are arguments to be made as to what Congress has said about the obligations of the U.S. with regard to the Convention Against Torture.  And the Convention Against Torture itself does state that no state party, which we are, shall expel, return, "refouler" or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subject to torture.  Now, we ratified that.  We ratified it, subject to certain reservations, one of which was that reasonable grounds for believing was, more likely than not, that there would be a danger of torture, and that this was not self-executing, so that we'd have to be implementing legislation.  We did then.  

Congress enacted implementing legislation, both implementing other provisions that do require signatory states to criminalize acts of torture, both inside and outside their jurisdiction.  We didn't enact legislation inside because we believed that our current criminal laws covered that.  We did enact legislation with regard to torture occurring outside.  So, certainly we prohibited torture occurring outside the U.S., and anyone who conspired to commit torture outside the U.S.  So, certainly if there is proof that a U.S. official has conspired with someone to commit an act of torture, even if that act of torture occurs outside the U.S., then our laws strictly prohibit it.

Now, that role of diplomatic assurances, which I'll touch on briefly -- we'll probably talk more about it later -- comes into play here because, as we'll talk a little bit about when we talk about Condoleezza Rice, the Secretary of State's explanation of rendition, what we often hear from the administration is that we do not torture.  We do not condone torture.  We do not outsource to torture.  And when we use rendition, which we use because it is a valuable tool in the war on terror, and when we send people somewhere, where appropriate, I think to avoid criminal liability we get diplomatic assurances from countries that the person will not be tortured.  Whether or not the law is out there and does prohibit it, which I think it does, it might be difficult to prove in some of these contexts that you had the requisite mens rea to have conspired to commit torture.  I think people like Maher Arar should be given the opportunity to show that the diplomatic assurance, if one was even gotten, was a sham, and that therefore there should be criminal liability.

So in the criminal context, we have.  And then in other contexts, Congress passed implementing legislation through the Foreign Affairs Reform Restructuring Act in 1998. and that law says "It shall be the policy of the U.S. not to expel, extradite or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subject to torture, regardless of whether the person is physically present in the United States."  Now, I have heard the argument that "regardless of whether the person is physically present in the United States" does not really mean what it pretends to mean, because that was just a policy statement.  It wasn't the law.  And you've heard the administration say that we are not legally bound if the person is not within the U.S., so, vis-ˆ-vis those extraordinary renditions that occur from one country to another.  

So when we have taken someone from Macedonia and sent them to Afghanistan, the administration's position is this would not bind them because that person was not physically present in the United States.  But that is a matter of policy; we would still get a diplomatic assurance that the person would not be tortured.  I disagree with that interpretation.  You know, where we meant something not to apply extraterritorially, we made that clear in the reservation.  We didn't do so here, so I think the clear understanding, when the Senate ratified that treaty, was that it would apply.  And certainly, this statement would agree with that.

You know, I understand, again, the argument that the words, "expel, extradite or otherwise effect the involuntary return" you could construe possibly as meaning that you have to be within the jurisdiction over which you have control.  You just as easily could say that it means you are expelling someone from wherever they are currently residing.  You are returning them from there.  And certainly, given that this provision, the provision against torture, is such a clear international norm, it seems to me, you know, beyond argument that you should be interpreting that not to create a massive loophole where you could argue that if they're not residing where you are sending them from, I mean, in your jurisdiction, you can somehow avoid this obligation.  

So I'm going to go ahead and stop there, because I am sure that I have exceeded my allotted time.  And I'll just look forward to the continued conversation as we move to the next topics.

Louis Fischer:  
You can't plan these things ahead of time, but it has so happened that all three of us lead directly into the second stage, which is Condoleezza Rice in Europe.  And I say that because, of all the legal analysis that goes on in looking at Youngstown and everything else, there is another part of the puzzle which is the reputation of the United States.  And Dan correctly said there have been efforts over the time when we know that our troops are being misused to do tit for tat and so forth.  That is part of our history.  The other part of our history is that, for instance in the War of Independence, when there was evidence that British troops were abusing American prisoners of war, there was, understandably, a desire to do exactly the same thing to British prisoners of war.  

And George Washington always was very, very firm and consistent that we are not doing that because we are fighting a war of independence, a war of principles where we are trying to attract people to our side.  And we are actually fighting an insurgency, and we're not going to prevail if we behave the way others behave toward us.  We're not going to do that.  And as Dan knows, in the Civil War, with all the atrocities going on, there was an effort at the top to devise principles of behavior.  Francis Lieber was the one who put together what was called a Code of Conduct to try to make war, if it's possible, a little bit less brutal than it normally is.  So we have been, over time, setting forth standards.  And when it turns out that we don't follow those standards, we pay a political price.  That's not a legal issue as much as it is one of our reputation.

So that leads directly to what happened when the Washington Post broke the story in December 2004, and then eventually Europe is very upset because it seems clear that European countries are involved in this.  The United States hasn't been doing it alone.  And as a result, Secretary of State Condoleezza Rice goes to Europe.  I think she made, for me, an extraordinarily clumsy statement.  I can't believe she wrote a word of it, but a lot of, "I'm sorry.  Lawyers put it together."  And it's brutal to read, you know, "It's not the policy of the United States to torture."  Then you have to ask, is it the practice of the United States to torture?  So she went over there to show that whatever the Washington Post implied is not the case.  Some months later it turned out that it was the case, because of what President Bush said.  So she was out there trying to make something look good that was not good.  

And I'll stop with that because Heather has some thoughts, and Dan, too, on what happens not so much in the core to our legal analysis or treaty analysis, but what just happens in the public lair as to what this does to us as a country.  So, Heather, you want to start off on this?

Heather Sawyer:  
Sure.

Daniel Huff:  
I think it works best if we stand up here, rather than jumping back and forth; that it records better.

Heather Sawyer:  
Okay.  You know, we have done, I think both on the Senate side and the House side, you know, a number of different hearings in the realm of oversight with regard to a variety of the different things that have gone on, and certainly with regard to renditions.  And I know that at least on the House side, both the Foreign Affairs Committee and then the Judiciary Committee, in conjunction with foreign affairs, have had specific hearings on the issue of rendition.  

And one of those hearings -- well, both of them touched on one fully, and then the other, with at least one of the witnesses really touched on how this practice -- whether, you know, in reality and what we hear in the press it's being characterized fully accurately or not -- how it has impacted our standing in the world.  And unequivocally the witnesses who came -- and there was also a briefing by folks from the European Union with regard to the investigations that they have now undertaken regarding both what the U.S. practice is -- is the U.S. doing what it's said to be doing? -- and European Union members' cooperation in that practice.  So there have been investigations by the Council of Europe and the European Parliament.  They have concluded now that indeed there have been numerous flights, that there's been complicity in those flights that were run by the CIA that stopped in various countries that were members of the European Union.  

They have condemned the cooperation.  They've asked the U.S. to stop the practice of transferring prisoners.  They've asked the U.S. to stop the practice of detaining prisoners at secret sites that were found in various European countries.  And they really have condemned the practice.  So it really has brought us under investigation.  It has called into question whether we mean what we say when we say that we abide by the rule of law, when we say that we don't either subject people to torture or send people places where they may be subject to torture.  

And I think that part of what is happening in the dialogue that we've heard, that was highlighted again with the nomination hearings for the Attorney General, and Lou highlighted it with regard to Condoleezza Rice's statement -- you know, there's a lot of legal wordplay going on with regard to what we mean when we say we don't torture, and what falls within that.  And are we saying that we don't send people to torture, do torture, as we now define torture in a way that historically we didn't define it?  You know, and historically we've certainly condemned, and contemporaneously.  I mean, our State Department's reports on human rights violations routinely condemn other countries and characterize as torture and abuse some of the practices.  And certainly waterboarding was highlighted when other countries engage in them.  We have criminalized people in the past for doing these as war crimes.

So you know, part of it is that we have just lost credibility.  We have hurt our relationships.  I think when we talk about Mr. Arar's case, you know, that's a compelling example of a relationship with an ally on our border, Canada, that was very damaged and still has a lot of tension and needs repair.  And I don't think anyone would argue that maintaining positive relationships with allies is critical, critical to our intelligence gathering, our national security and really just our standing in the world.  So I don't think anyone's, you know, pooh-poohing that as an important goal.  And I also don't think anyone would say that we have not helped ourselves with some of the things that we have been very secretive about.  

And the example here, I think, is a good one.  We have the Secretary of State going over to Europe to assure them that we are not engaging in, you know, incommunicado disappearing of detainees.  The folks that she met with come away from the meetings feeling assured that indeed the U.S. is abiding by humanitarian standards.  And then after the Supreme Court hearing of rules that Common Article 3 does indeed apply to detainees, President Bush comes out with a statement admitting and acknowledging that we have secret detention sites, and that we are going to now transfer those folks, and that he needs to come to Congress and rewrite the law so that certain things that would be considered violations of Common Article 3 are no longer considered violations.  And we are going to also grant retroactive immunity to any U.S. personnel who was engaged in what was called, at the time, unauthorized interrogation.

You know the old adage "Fool me once, shame on you.  Fool me twice, shame on me."  I can't imagine that they're not feeling this.  So I think it's really, you know, been damaging.  I think it sets a negative threshold for our own troops and our allies' troops; puts them at danger.  And you know, we often hear that the other folks aren't abiding by humanitarian principles.  They're not abiding by the rules of the Geneva Conventions, so, you know, we kind of should not worry that we are not doing the same within this.  And I think it's why a lot of the military personnel are really speaking up quite forcefully now.  

We are not just saying that, you know, you outliers, we know that you're not going to abide by the Conventions.  We know that you're not going to abide by these, and therefore, you know -- we are actually claiming that things we are doing fall within the confines of the Conventions.  And so we are redefining the legal standard that we now are going to say should be and can lawfully be applied to our own servicemen and women.  So it just has a lot of things for us to think about, for us to worry about, and for us to figure out how best to get appropriate oversight to make sure that when we say that we are abiding by well-established both U.S. law and international law, that we are actually doing so.

Daniel Huff:  
Okay.  With respect to the investigations in the foreign countries, it's difficult for me to get too excited about it because I don't believe that it has any bearing on the legal analysis which we do here in the United States, with respect to whether these actions violate the Constitution or various treaty obligations.  As far as how this makes us look abroad, and these types of ideas, I certainly agree that you are better off not promising at all than making a promise and not fulfilling.  And I think that there have been many mistakes over the years in signing on to various agreements with which we cannot, in the end, comply.  And to say that these investigations have been going on, I think sometimes in the media, it's somewhat not presented clearly because it gives the impression that somehow the United States hoodwinked all these European nations, when in fact, if you look at the investigations, many of them conclude that the governments of these nations were in fact complicit in what the CIA has been doing.  

And we'll talk about El-Masri.  I believe, if I'm not confusing it, he was taken from Italy with the help of -- perhaps it wasn't El-Masri; somebody else was taken from Italy with the help of Italian authorities.  And if you look at a lot of these investigations, there was aiding and abetting and there was knowledge.  And I think it's important to look at who exactly is doing the investigation, because in some of these places it's not -- the people who had the authority to authorize the assistance to the CIA are not the people doing the investigating, which may sound fine.  But what does it show?  It shows that there were people in positions of power who felt that it was justified.  So I think that undermines the argument that this is somehow against all laws of nations and against the practice of all civilized nations.  

If you see that the leaders of various nations cooperated, then clearly it's not against customary international law in a commonsense way, because the custom is to assist governments in doing this.  And so all these investigations often only serve to undermine these notions that somehow it's the United States that's kind of off on a tear, doing a thing by itself.  It's doing it with the assistance of other people, and they ought to have a frank discussion in their countries as to, is this something we want to do?  But I think it's important to keep in mind that the United States is not alone here.  And that does, I think, tend to mitigate the cries against it.

The other thing is that, you know, if they want to go and say that certain things violate their own laws, again, that doesn't bother me too much.  Maybe it does, and maybe it doesn't.  They can investigate and subpoena.  But I do want to point out that the United States has refused, for example in the case of the Italian investigation, to extradite various people.  And I think, again, that's portrayed as some sort of admission of guilt.  It's not necessarily so.  What I might be saying is we may have committed the stated acts, but we don't deem them to be illegal, the same way that we heard this past week that there was a woman in, I believe it was Sudan, who was put in prison for some sort of silly thing, naming a teddy bear or dog after Mohammed, and this was an offense.  And they wanted to put her in prison, and they called for her death.  

Now, she was a British woman, and eventually she got out of there through various diplomatic channels.  But had she returned to England after committing the offense in Sudan, and Sudan says, "We want to extradite her," would England have done it?  For some of the people, they would have said no, not because they denied that the act occurred, but because they claim the act doesn't violate any laws which England wants to be cognizant of; sort of similar to what Jefferson said a while ago.  So what's my point?  I guess I want to point out one thing, that if the United States doesn't extradite somebody, it's not an admission of guilt of some terrible crime.  It's just, look, we have some defense of what we are doing, and the fact that you may not recognize it means we're not going to send our people there.

And I'll just very briefly go back on the legal issues because I think they were brought up in a little more depth than I had anticipated.  It's true the Supreme Court has found that only Common Article 3 of the Geneva Conventions applies to the war on al-Qaeda.  Now, it's possible later they may change their mind and say it applies to more, but currently they have only found Common Article 3.  Common Article 3 does not prevent essentially the extraordinary rendition, the transfer of someone.  So that's essentially besides the point, and to say that we should apply the whole Geneva Act to them -- when the Bush administration takes the position that the Geneva Acts don't apply, I don't think the argument's made clear enough.  It's not because we don't want to be bound by this.  There is a real idea behind the Geneva Conventions, which is we want to minimize civilian casualties.  

Therefore, what do we do?  We say you have to wear uniforms.  You have to do all sorts of things to demonstrate that you are a combatant so we can target you and not target the civilians, with the overall aim of diminishing civilian casualties.  But what happens with this war on al-Qaeda is they attack civilians on purpose.  They don't wear uniforms on purpose.  So there's a logical argument that we don't want to -- it would be anomalous to say we are going to provide them with the protections that they would get in return for identifying themselves when they're not even identifying themselves.  You're allowing them to essentially have their cake and eat it too, because they're not minimizing civilian casualties by wearing uniforms or refusing to attack civilians.  And yet, you want to accord them the protections.  But it's an exchange.  It's a bargain.  Identify yourself, and in exchange we'll treat you a certain way.  If you don't do the first thing, you're not entitled to the second.  

So there is a good, I think, rational argument not to expand the Geneva Conventions to them beyond the Common Article 3, which as I say, Common Article 3 does not prevent the extraordinary rendition.  That's number one.  With respect to FARA [ spelled phonetically ] it's true that there is an additional sentence.  I just talked about the UNCAT itself, but there's the implementing legislation FARA which says we're not going to do extraditions or expulsions or returns, you know, irrespective of where the person is.  However, that addition in the statutory language, regardless of where the person is, in fact applies generally, but not in the cases of people suspected of terrorism.  

Why?  Because in the implementing legislation, they also added that, you know, none of the implementing regulations of any of these things here, including this business of extraditing people, should be construed to apply to somebody who is essentially suspected of engaging in terrorist activity against the United States, unless required by UNCAT.  So I have shown already that it's not required by the treaty because it doesn't fit with one of the terms: expel, return or extradite.  So therefore, the additional extension that was done by statute to say it doesn't matter where you are should also not apply because of the fact that people are in that narrow category of persons who are excluded in the regulations by reason of the fact that they are suspected of committing terrorist acts against the United States.

And there was another point I wanted to mention.  But yes, just sort of broadly talking about the rule of law, I mean, that is correct, but what is the rule of law?  It's looking at the statutes and seeing what they prohibit and seeing what they permit, which seems to be exactly what we're trying to do here.  And lastly, I would say that it is true that the administration has signed on to things which are a bit in excess.  I do agree that certain statements by Secretary Rice, perhaps, you know, went too far.  And I think that was a mistake.  And I say, again, I think there should be an open debate, and people should say, like, this is what we are doing, and we're doing it for the following reasons, and we think it's justified, you know, and we're going to have a debate about it  instead of trying to make everybody happy and make all sorts of promises that in the end you can't keep.  It's quite detrimental.  And then they wind up looking silly in situations like this where we find out that, in fact, you know, things that are bad are happening.

And just one last thing about the assurances.  I entirely agree that the assurances are not to be relied upon.  If you have a report that a country commits torture, it's sort of foolish to say, "Well, we got their assurance that they're not going to commit torture."  Obviously that's true.  Again, though, it's beside the point because I say that the Convention doesn't apply to the facts that we have.  There's no expulsion or return or extradition, and so whether or not we have these assurances doesn't come into play.  But one last point is that, as I said in my initial remarks, it's only torture that's prohibited.  I think the government could come and claim, "Listen, it's true we knew bad stuff was going to happen.  But we thought it was just going to be cruel, inhuman and degrading treatment.  We didn't realize it was going to be torture."  That's a slightly more plausible claim, as uncomfortable as it sounds.  

But again, you know, rule of law, that's the law.  And if you want to tell me, as I said before, that you want to do something about it, let Congress pass legislation.  Nothing is preventing that.  They can do it.  This isn't a Constitutional finding.  They don't need a super majority.  I mean, maybe there will be some filibustering, but that's part of the debate.  So if you think that it doesn't reach there, change the law and it will.  But in the meantime, my initial point, if there's two interpretations, one that permits it and one that doesn't, in a time of war the President's entitled to the interpretation which suits his purposes.  

Louis Fischer:  
Okay, thank you, sir.  Okay.  We have 30 minutes, the last 20 minutes for you for questions, so we have 10 minutes to, I think, combine both the litigation and the legislation, which we can do.  I'll get out of the way very quickly.  I just want the audience to know that Khaled El-Masri was the German citizen picked up in Macedonia while on vacation, kept in Macedonia for a few weeks for questioning, tough questioning, and then flown to Kabul and kept there for four months, during which time the United States learned that they had picked up the wrong person.  It was someone who sounded like the person they were after, someone on the Hamburg al-Qaeda cell.  So they picked up the wrong person and he sued in court, lost in District, lost in Appellate and tried the Supreme Court, which refused to take the case.  So that's El-Masri.

Maher Arar, I'm sure all of you know, was the Canadian citizen who, on the way back, was stopped at JFK and questioned and eventually, after a number of days, flown to Jordan and driven up to Damascus for about a year of torture.  I'll just combine that with legislation.  One thing in the El-Masri case the Court did, and they often do it, they say, "Well, we're faced here with a balance.  On the one hand, on one side you have El-Masri, one individual, and on the other side you have balanced the national interest or collective interest," or something like that.  And my point would always be -- and I think legislation could do this -- if courts need a definition of what national interest is, I think Congress can say national interest means abiding by the Constitution and by the laws, and allowing checks and balances and having independent judiciary.  

Those are all part of the national interest, and I'd be on the El-Masri side.  I don't want to be in a place where I'm picked up by mistake and taken to Kabul for five months.  So these things connect.  And Congress is the branch, better than the other branches, to decide what is the national interest and to spell it out by statute.  

So Heather, you want to go next?

Heather Sawyer:  
Sure.  All right.  I'll be brief as well.  You know, I think part of the problem, and certainly I hear what Dan is saying about reasons why this administration has articulated that these folks aren't in uniform, they're not carrying the flag of another nation, you know, that's why we don't apply the Geneva Conventions in any way to them.  And you know, certainly I think we've made the clear argument as to why they're not prisoners of war.  You know, the Conventions do talk about protecting other persons.  And you know, part of the difficulty here is as soon as this administration deems you to be a terror suspect, you're into this loop where you get no protection whatsoever, and you really have no meaningful means of challenging the fact that you have been deemed a terror suspect.  

And so part of it is just this self-fulfilling prophecy that if we say you are a terror suspect, by virtue of that we can basically move you wherever we want.  According to Dan, the Conventions don't apply whatsoever.  So we don't even have to get diplomatic assurances setting aside the need -- you know, any debate over whether or not we should be relying on those.  You know, and I just think that that is an impossible world and framework to live in, where you are deeming unilaterally someone to be who you say they are, and then not allowing them any meaningful protections.  And I think that's part of what went on in the argument this morning in the Supreme Court.  And I don't know how many of you saw the article on the front page of the Washington Post, but I think that the person who was highlighted there, the German citizen who was picked up while on vacation, who all of the U.S. intelligence agencies agreed was not a suspect in the war on terror ultimately, but spent five years in Guantanamo is a good example of someone caught up in this loop.  

Maher Arar is another person who is still caught up in this loop.  He is someone who was transiting through JFK, was detained here based on information that we had gotten apparently from Canada.  We have never really disclosed in any public setting what information we used, but there was a Canadian commission.  And part of what I think is instructive here is seeing how two different democracies have responded when faced with a potential error.  And one of those democracies, the Canadian government, commissioned a public inquiry into what Canada's role had been in the detention of Maher Arar and the subsequent failure to then get him back after he had been removed to Syria.  They invited the United States to participate in that inquiry.  The U.S. said no.  And there may have been reasons why, aside from what we have asserted in court here, which is national security.  But we refuse to participate.  

That commission concluded, after two years, after studying 20-some thousand documents, having full access in the commission to all of the underlying documents not made public, but with a proceeding that adequately protected national security concerns, they had an amices appointed to advise the commission on that very issue.  The Commissioner, who is a Chief Justice of their court, ultimately said, you know, this procedure worked because you have to have an independent assessment of whether the claim of national security is one that's overbroad or valid.  And in many instances, they found that it had been overbroad.  In other instances, they found that it had been valid.  But they were able to issue -- I think it's in excess maybe up to a thousand pages of recommendations and findings that they could issue publicly, with certain provisions redacted.

Out of that process came certain findings.  One of the findings was that Mr. Arar has -- there is no evidence whatsoever of any wrongdoing.  There is no evidence that he was ever a threat to Canada or any other country.  There was evidence that Canada had passed on incorrect information to the U.S. and had not put sufficient caveats on that information, and that it was likely that the U.S. had relied upon that incorrect information in determining that he was a member of al-Qaeda and detaining him.  As a result of their commission, their Prime Minister apologized.  The Commissioner of the Royal Canadian Mounted Police first apologized, and then stepped down after it had been found out that he had lied to the commission.  They decided to compensate him, so those are all very important things for Mr. Arar.  He's gotten some public vindication of what happened to him.  

And I kind of skipped over some of the facts.  Once he had been detained here, he was held here without access to anyone.  He wasn't even given a phone call for five days.  In the Brooklyn Detention Center, on U.S. soil in the U.S., denied even a phone call for five days.  Made a phone call, got a lawyer.  He alleges -- and it's never been tested because of state secrets -- that his lawyer then came to see him once.  He was then questioned, out of the presence of his lawyer; that despite his repeated requests for his lawyer was told that his lawyer did not want to attend.  His lawyer was told at the same time that he was being transferred to New Jersey.  He was actually then transferred by plane through Washington, D.C., a private jet, five agents and him, shackled, through Washington, D.C., I think through Maine, through Italy, to Jordan, actually turned over to Jordanian officials who beat him and turned him over to Syrian officials, where he then spent 10 months.

Louis Fischer:  
Heather, I've got to get Dan up here.

Heather Sawyer:  
Okay.  So in any event, it just raises some, to me, serious questions about the adequacy of any type of oversight process there.  And I will skip talking about what can be done legislatively.  Legislatively, you know, certainly there are proposals out there.  We could do more.  But part of the problem -- and I will just be very frank, and this is an ongoing frustration -- is it's really hard to legislate in a vacuum.  And there have been unbelievable efforts to keep us in a vacuum on these issues.  We asked for an Inspector General report four years ago.  We haven't gotten it yet.  We ask routinely for the Secretary of State to explain what happened, and who gave assurances.  We get no answer.  We've asked the same from the Department of Justice.  We get no answer.  There have been requests for independent counsel.  They have been refused.  So it's very hard, and I think it's unwise to legislate in a vacuum.  And we are busy trying to figure out some of the facts so that we can figure out where the loopholes are that we need to fix.

Daniel Huff:
I agree that the Arar case in particular is very problematic, particularly because Arar was initially in the United States.  So certain rights would have attached to him that may not attach to somebody in a foreign country.  And it is a very problematic thing, but particularly because it essentially appears he was innocent.  Now, I note that the District Court, in a footnote mentioned that there was some basis for suspicion based on the fact that he said he was going to conduct an interview, and then he wanted later to impose certain conditions.  And it did seem somewhat suspicious.  But that doesn't justify sending a man off to Syria to torture him.  However, there was some, you know, small amount of suspicion, though, with regard to him.  

But my point is this:  He was essentially innocent.  And that's the problem.  And when we think about these questions, like when you think about rendition, like, let's say we, you know, render a hundred people, and two of them turn out to be innocent.  Does that mean we stop it?  And I think it's easy to focus on the innocent scenarios and say we shouldn't do it at all because of these cases of the innocent people.  That's not necessarily true.  There's always going to be collateral damage.  In fact, when you go in and bomb a country, civilians die.  And I think that there has to be a discussion of to what extent are we going to tolerate this.  And the answer might be "No, one is too many."  

Remember, in the criminal law, you know, the famous statement, "Better that 10 guilty men go free than one innocent person should suffer," and that may be fine.  But you may argue to the contrary.  Look, that's true in a criminal context, right?  If a murderer goes free, 10 murderers go free, no big deal.  One terrorist with a bomb goes free, that could be a big deal.  So you have to discuss it, and I don't know where you come out on that, but I do think that there is room for discussion.  And so, again, you know, when you look at these cases, the cases that they present to you are the most sympathetic cases, the ones who are innocent.  But consider that there may be a lot of cases where they're not innocent, and then the question is, well, what do we do?  

Now, if you would agree with me that in the current situation various renditions may be conducted, but there are some problems in cases where people who are innocent are taken, I agree those people should be compensated.  And in fact, I looked before I came here; there are certain federal laws which compensate people who are unjustly imprisoned, just generally, you know, as a result of a criminal prosecution.  And they're entitled to a certain amount, and I think it's $100,000 a year for every year that you were imprisoned, essentially, if you were in prison on a capital crime, and $50,000 if you weren't.  And I think we would look to those to figure out what would be the proper compensation.  It could be done in the form of some sort of private bill, which is something that you mentioned to me, actually, in an email.

Again, there are general problems, though.  I do think Congress has to step in and do something.  As I said before in my initial remarks, Congress can.  There is article to authority, but I believe, because we're in this zone of twilight, Congress can do various things.  The question is, what?  And if you look at the cases, one of the big problems is you mention the state secrets.  You can prevent all sorts of behavior, but when you come in to sue, they'll say, "Sorry.  State secrets."  And the suit's thrown out.  Or, you know, they can prohibit something generally, you know.  Like you said before, the statement in FARA; you know, it will be the policy of the United States not to do X, Y and Z.  So the U.S. does X, Y and Z and you go into court and you say, "Hey, they violated my rights.  What am I gonna do?"  

And then they say there's no private right of action, which is an idea in the law that even if there is some right, there may not be a remedy for the individual.  Well, then how do you get at that?  And it's very troubling, but it's very common in law.  It's not just in this area.  And you have cases of people, not just with respect to renditions, but there was someone who sued, I think, the CIA based on racial discrimination a couple years back.  And the suit was dismissed on state secret grounds because they said in order to litigate the suit, you would have to make public the way that the CIA makes certain decisions with respect to promotion.  

And you know, there is something to that argument, but on the other hand, the man, you know, may have been wronged.  So it's a very difficult thing.  And you can't, I think, throw out the notion of state secrets.  I think it's an important one, you know, simply by reason of the fact that you may deem it being abused on one occasion or the other.  And it is a very difficult problem.  And what can Congress do?  It's true there have been various proposals, and I think there's three now that I know of.  I know that Senator Specter has tried to attach a proposal as an amendment back in July.  And bear with me one second.  I don't want to say the wrong thing, or he'll come after me.  But I think the basic idea of his legislation was it will provide judicial review of renditions, lodging jurisdiction in the U.S. District Court for individuals transferred from the United States; in other words, cases like Iraq.  

And if someone was transferred from a foreign country, from Country A to Country B, that would have to get the approval of the FISC, you know, the same type of Foreign Intelligence Surveillance Court that looks at these warrant lists -- well, now warrant full wire tapping.  It would also require that the FISC or District Court, in considering these applications for rendition, presume that the receiving country is going to torture the person if, in fact, that country is on the State Department's list of countries which torture.  So it's trying to get at some of the problems I said before, with respect to these assurances and saying that some of these assurances aren't really worth anything if we know the country does torture.  

But again, this would be something specific which would address what I said before.  In other words, the current law doesn't prohibit it, in my view.  But you know, once you pass these things, then yes, it would.  And that's perfectly fine with me, provided it's after some open debate, and looking at the different sides of it.  So there are these various things that Congress can do.  But again, the main problems are the state secrets, the private remedies.  And again, if the President were to disobey any of Senator Specter's bills, what will be the recourse?  So you have these problems.  And they're very difficult, and I'm sorry I don't have a better answer.

Louis Fischer:  
Okay.  We have time for questions.  I think we'll just sit here and get your questions.  If you talk loud, then we won't have to repeat your question.  So go ahead, Mike Garcia.  Mike's testified on this probably a month ago, so he's our expert. 

Mike Garcia:  
I wanted to, I guess, address the title topic of this presentation, which was "Constitutional issues."  And I was wondering to what extent Constitutional issues are dependent upon whether or not people are rendered from the United States or from wholly outside the United States, and whether or not the people have any ties to the U.S. who are rendered, and if there aren't any sort of Constitutional protections, what do you think it comes down to?  Does it come down to the law and treaties, et cetera?

Louis Fischer:
Which one will go first?

Daniel Huff:  
Please.

Heather Sawyer:  
Okay.  I think, yes, there are Constitutional considerations, and they will be dependent upon whether or not -- your connection with the U.S., meaning U.S. territory.  And that's not to say that I agree that there's no protection once you're outside kind of the jurisdiction, meaning geographic location or one of our territories.  But I think the argument's become much steeper for someone trying to assert that there should be any U.S. Constitutional protection if they were not setting foot kind of within U.S. soil.  And so for that reason I think that Dan and I both agree that with regard to Maher Arar, someone who was here and was not just at the border -- I mean, there sometimes is this distinction between someone who is purely at the border and expelled; I mean, he wasn't admitted, he was in summary removal proceedings, so you could create a legal fiction.  But he was held in a detention facility in Brooklyn for two weeks.  I think that's enough to establish a sufficient connection.  

He alleged, in his lawsuit, Fifth Amendment substantive due process protections, meaning that he was entitled not to have conduct against him that would shock the conscience.  And certainly, the case of setting up that standard would indicate that acts of torture that were -- I mean, he did allege with regard to his treatment here, they violated the Fifth Amendment as well as that the conspiracy to send him somewhere else where it was likely to happen arose here in the U.S.  So he certainly alleged Fifth Amendment claims.  Now, in his case the Court dismissed the claims because they said, "We're not going to recognize a Bivens suit."  They didn't even reach, yet, the state secret concern.  They said, "We're not going to recognize a Bivens claim because of the national security implications, and it augers against recognizing the claim here."  That's been appealed.  We don't know how the Second Circuit is going to resolve that yet.  Presumably at some point, a court, in his case, will reach state secrets.

And this was kind of writ large this morning, in the argument before the Supreme Court, which was once you step outside territory, and you're maybe in the custody or effective control of the U.S., how far do any kind of Constitutional protections run?  And in that context, it's whether or not you would have a habeas right to challenge your detention.  You know, I think there are arguments that, you know, certainly courts should reconsider in this contemporary time what the limits are, what the appropriate limits are.  I know that with regard to certain types of Constitutional protections, the courts have been very reluctant to extend them to someone who doesn't appear in the U.S. and isn't in the territory.  And certainly that was true with the Fourth Amendment search and seizure warrant requirement saying that standards in different countries are different.  

You know, I think there are credible arguments that the standard not to be subject to torture, at least, is not a different standard country to country.  I know there can be difficulties in defining what that means, but I think these are open questions.  Though I haven't made it very short, an answer to your question is that -- I would argue, certainly there should be Constitutional protections for individuals who are really within -- you know, the argument this morning in the Court was that you would have to look to what the relationship was if you've got someone who's outside the U.S., but in effect under the custody and control of the U.S.

Louis Fischer:  
Dan?

Daniel Huff:
I think the precedent certainly supports the proposition you sort of suggested of a sliding scale.  And I think it's quite true that the cases of Exabidus [ spelled phonetically ] and Verdugo [ spelled phonetically ] or Aquitez [ spelled phonetically ] do point to the basic proposition that the Constitution protects citizens or aliens with a meaningful connection to the country or who are present on U.S. soil, but does not generally extend to aliens outside our territory.  And the question of habeas obviously has been decided with respect to U.S. citizens, and statutory habeas with respect to foreign citizens held in Guantanamo Bay.  And there was further discussion, just as you mentioned, this morning.  But it's certainly the case that the Constitutional issues are certainly much broader and problematic here in the United States.  

And the thing I would say, though, is the Article 2 power of the President, again, I think the arguments I made earlier about the power of the President would also apply much more easily abroad.  And while I did mention that al-Qaeda and the terrorists can be anywhere, the problem in the United States is that conceptually it's ripe for abuse, because if the President can essentially, you know, declare somebody an enemy combatant in the United States, or consents to lock somebody up without any rights in the United States, it makes it a lot more easier to, say, lock up a political opponent who intends to reside in the United States, whereas abroad I think the motives for abuse may be less, and then, therefore, I think that there's again this conceptual reason to say, as well, that the Article 2 power is somewhat weaker at home than it is abroad.

Louis Fischer:  
Okay.  Other questions?  Go ahead.

Male Speaker:
So if I understand the argument, Mr. Huff, that the President has the power and he does not violate his oath to basically execute the laws, if the President orders federal agents to kidnap somebody in Italy and transfer them to a third country, would the same argument apply that the President has the power and does not violate his oath of office if he were to order federal agents to rob a bank in Italy and transfer the money to a third country?  Is that within the Presidential powers?

Daniel Huff:
What article would it be in the pursuit of a wartime power?  My assertion was that Article 2 -- it's not the execution --

Male Speaker:  
[ Inaudible ].

Daniel Huff:
No, but it's not the execution.  But again, my argument was centered on the fact that it's not about just executing laws.  And we know that because when it's executing foreign laws it's problematic.  It's about war.  He is the Commander in Chief, and it all springs from that.  And your example of the bank robbery, the answer is no.  Why?  Because that's not really part of engaging in a war with somebody.  It's absolutely not.

Louis Fischer:  
Another question?  Go ahead.

Male Speaker:  
I just have a question.  I think there is --

Louis Fischer:  
Loud.

Male Speaker:  
You present your examples of extradition as kind of similar events, but I think there's an important distinction between the two.  When you extradite somebody, initiative comes from the other country, so your actions are reactive  in a way.  You get a request for extradition, and then you decide how to act on that request.  I think there is a big distinction between that and extraordinary rendition, because in this case, as I understand, the CIA never asked for Mr. Arar [ inaudible ].  He was to be sent to Syria for whatever reason.  The initiative was coming directly from either the U.S. or Canada.  In the other case, it was only the U.S.  So isn't that something that draws a really big distinction between these two?

Louis Fischer:  
Yeah, I think there's a big distinction in what you just said, that the initiative is by the United States, and the second distinction is that you are, with extradition and rendition, bringing someone to trial.  

Male Speaker:  
Right.

Louis Fisher:  
Which is not the case here.  

Heather Sawyer:  
Right.  

Male Speaker:  
[ Inaudible ] that person; the question is why the initiative is coming not from you in one case, and the initiative is coming from you in the other case.

Heather Sawyer:  
Right.  And you know, the other distinction that I think we should not lose in this is that in the context of extradition, at least in the term of doing it pursuant to an extradition treaty or agreement, there is a legal process at the front end and not just at the back end.  You are being brought, presumably, to a legal process, but you have an opportunity at the front end to participate in the decision and to make arguments that you shouldn't be sent.

Louis Fischer:  
And a judge is involved.

Heather Sawyer:  
And a judge is involved in assessing that.  So, you know, I think that clearly makes a difference.  And, you know, something that Dan had mentioned earlier with regard to the example of a British citizen who was being held and wouldn't be extradited -- I mean, most extradition treaties also set forth the types of crimes.  And they do it by a couple of ways.  Either they list them out, or they say "Anything that's considered criminal here could be criminal there."  And these are extraditable offenses, so certain things wouldn't automatically be an extraditable offense in any event.  

So there are just protections, there are rules.  There's an opportunity to challenge it.  You know, it couldn't be more different.  And you know, the difference here really is whenever you're dealing with rendition, you aren't giving the front-end opportunity.  That's clear.  You're not giving someone an opportunity to participate and have meaningful representation and have an independent court decide, are you really a suspect here?  Are you really a member, or giving material support to al-Qaeda that justifies this kind of treatment?  You know, and that's another way in which some legislation might help.

Daniel Huff:
I think your distinction is quite right.  But again, my argument for the President's authority here is not by analogy to extradition, it's by his war powers under Article 2 as Commander in Chief.  And in fact, I agree in all these cases that you would need legislative or Congressional authority to act because you are executing U.S. law.  You are duty bound to execute U.S. law, not that of foreign countries.  In the context of war it's quite different.  So in fact, the more you can distinguish extradition from the cases we have here, the better it is for my position.

Louis Fischer:  
Okay.  On the President's power, I think the greatest emergency we ever had was Civil War where Lincoln took certain extraordinary actions, but came to Congress stating that "I do not have authority to do what I did.  I did it out of necessity, and the only way to comply with the Constitution and our law is to come to Congress, explain what I did and why and get authority from you, and do so at the earliest possible instance."  

Please, go ahead.

Dr. Rubens Medina:  
This may be the last question, I don't know.

Louis Fischer:
Okay.

Dr. Rubens Medina:
It's a theoretical one, by the way, all right, coming from my usual look around the world; comparative legislation and general principles of law.  I heard repeatedly, Dan, that you mentioned that he is the Commander in Chief, he has all this power.  It seems to me that in the case of the United States, particularly historically, we came away and far from imperial and monarchical principles where it was this unlimited power granted by God to the sovereign, right?  And I think that we have said repeatedly to the world and to ourselves that we are indeed subjects of law, and therefore committed to justice.  And so also, we speak of the separation of powers having a judiciary to make a judgment, to say what the law is when there is the possibility to interpret one thing in one direction or another.  

It seems to me here that what I hear is that our judicial system has not been either given a chance or even taken the opportunity to say what is the limitation of the powers granted to the President, because I think it would be very hard to explain not only to this audience, but to the rest of the world that this power is omnipotent, that he can do whatever he wants to, including that of ordering the state to steal a bank and whatever it is.  If it's that unlimited, I think that we have a problem.  But I think the judiciary is here, the one that should have the first chance to say what are the limits of these powers.  Legislation is only part of the justice system, right?  Law is only an instrument of justice.  It's the court that is supposed to speak out about these legally undefined issues.  That's all.

Louis Fischer:  
Dan and Heather, and then we'll wrap it up.  Go ahead, Dan.

Daniel Huff:
I suppose I agree with a lot of what you are saying.  But, you know, the judiciary in the past -- well, first of all, with respect to the President's power, it's true that we move away from the President as king, although there were some people at the Constitutional Convention who felt that Washington should be the king.  But leaving that aside, it strikes me that, again, I agree with you with respect to powers within the United States.  And that's why I drew the distinction before, because I think conceptually it's much more ripe for abuse when the President's exercising power against U.S. citizens in the United States; people against whom he may have a grudge.  

But the whole idea here is that the President's war powers, he is acting abroad.  And the fact is the Constitution and the various laws do not care as much about these things abroad as they do within the United States.  And in fact, if you look at the doctrine, the courts generally defer to the President in interpretations of statutes and treaties with respect to obligations overseas, I think perhaps for this reason.  And so I agree with you that the President's power is limited.  But it's still its broadest with respect to these foreign entanglements, so to speak.  And I agree that the court is trying -- you know, I think that you have to be aware of abuse.  

But again, keep in mind it's very difficult because we talked before about the state secrets doctrine and the various private rights of actions, and these things are important.  I mean, you could envision situations where, you know, the United States is trying to undertake a particular operation, let's say to assassinate Osama Bin Laden, and in the course of this, something happens that could be -- okay, I'm not going to try to create the hypothetical right now.  But there is a notion of state secrets, that you don't want things to get out.  And I think it's an important one.  And so you can't just dissolve it, even though in some situations it may be taken advantage of.  So it's a very difficult thing.  It's not just as simple as, well, we're trying to do justice and so the courts have to intervene.

Louis Fischer:  
Heather, last word.

Heather Sawyer:  
Oh, blissfully enough.  All right.  I'll try to be brief.  You know, as I understand your comment and question, what you're really saying is, look, we need the judiciary to step in here and take a look at what's been going on and make an initial assessment.  Have we got a situation where we are acting outside of lawful bounds?  And we have before the courts two perfect cases, one involving and raising the Constitutional issues that Mike had mentioned earlier, about you've got an individual with arguably very sufficient connections to the U.S., was in the U.S., was sent abroad and then was tortured, or alleges he was tortured.  And the Canadian commission found he had been tortured.  You've got someone else who was in Macedonia, who with the cooperation, and at our request, was taken and transferred to yet another state.  

So in the first instance, what I understand you to be saying is we really need the judiciary to get in here and tell us, you know, are we violating our laws?  What laws are we violating?  And then if Congress disagrees with that, legislation might be an appropriate way to help moderate what's going on.  And I could not agree more that that is necessary.  And that would be a wonderful first step.  We don't know yet, in Mr. Arar's case, what might be the result on state secrets.  I don't necessarily -- just kind of looking into my crystal ball, which is often very, very, very cloudy.  But my guess would be that they're not going to necessarily show any greater willingness to get beyond the declaration that there is a state secret at issue here.

And part of the difficulty is that the government has asserted the state secret privilege with such breadth, saying, basically, we must take certain subject matters off the table altogether.  The subject matter of rendition and how we do it and when we do it is off the table for the courts.  You can't litigate these cases.  And so therefore, we're not getting, you know, the independent assessment and we're not getting that vigorous look.  And maybe something needs to be done to really remind the courts and empower the courts of their role in this system.  So I think I can leave it with that.  

And again, I just want to say, the Canadian commission -- and, you know, I'll give you your rebuttal time -- the Canadian commission did this function.  And they understood that there were national security concerns, and those concerns were just as valid for Canada as they are for the U.S.  And I appreciate and understand that there are going to be situations where a court looks at this stuff, and they have an amices there to test it, and they decide that disclosure to the public, or maybe disclosure even to an adversary who has been given a security clearance can't happen.  But it shouldn't be withheld from the decision-maker.  You can't have an independent assessment without that.  

And that didn't happen in Canada.  They didn't have security breaches.  They were able to do it, and they came up with good recommendations; both how to handle national security concerns in that context, but also how to work on their national security procedures so that mistakes like Mr. Arar's didn't happen again.  So it can be done.  We've got a perfect model, and we just need to work on doing it.

Louis Fischer:
Dan?

Daniel Huff:
It's not actually a rebuttal.  I just wanted to make the point about the state secrets doctrine that's often invoked.  It comes from a case called Reynolds, having to do with a certain plane crash, of a military plane.  But what's often, I think, forgotten is two things.  Number one, the government did offer alternatives for the people who wanted to get the information.  They offered certain interviews, even though they didn't offer a report that they sought.  And that helped them essentially recover 80 percent of what they thought they were entitled to.  And so when you invoke state secrets, remember that in the original case that upheld the state secrets to prevent them from getting the documents, there was an alternative for getting most of the information they needed.

The other thing is that something that might be done is, for some reason, the courts in the El-Masri case, once the privilege is invoked, the state secrets privilege, if it applies, the courts cannot examine the documents even in camera, meaning, you know, privately.  I think that's too extravagant.  If you want to change something, maybe you change that.  Listen, you don't want to publicly make it available, that's reasonable.  But you can have people like these FISA court judges who have security clearance look at that, and maybe that's a way of getting at these problems, because we certainly need some oversight.

Louis Fischer:
Just a small point on the Reynolds case.  On the alternative of going down below and getting depositions, you're not going to get the information from depositions that was in the report; namely negligence on the part of the government for not installing proper equipment.  

But two words of appreciation here: Dan and Heather have just started one of three hectic weeks to come here on Capitol Hill.  So I really appreciate you taking time, and also very vigorous, clear, lucid comments from both of them.  So thank you very, very much.

Daniel Huff:
Thank you. 

Heather Sawyer:  
Thank you, too.

[ applause ]