By AUDREY FISCHER
How do we balance individual rights and freedoms with the monumental task of securing the homeland in the wake of the 9/11 terrorist attacks? This question was at the heart of the first in a series of legal debates held at the Library of Congress on June 17.
Sponsored jointly by the Law Library of Congress, the Burton Foundation, and the law firm of Shook, Hardy & Bacon, and moderated by former Secretary of Defense William S. Cohen, the inaugural program of the Holmes Debates addressed this topic selected by Supreme Court Chief Justice William Rehnquist.
"The purpose of the debates is to create a national forum where issues facing the judiciary can be discussed, analyzed and debated," said William C. Burton. Acknowledging the role of Law Librarian of Congress Rubens Medina in co-founding the program, Burton said, "He is a true statesman," under whose leadership "the Law Library of Congress is fast becoming the center of the legal universe."
The series honors American jurist Oliver Wendell Holmes Jr., who was appointed to the Supreme Court by President Theodore Roosevelt in 1902 and served for more than 30 years. His legal opinions earned him the nickname of "the great dissenter." It was the spirit of Holmes that drew Secretary Cohen to the program.
"I receive many invitations but this one caught my eye since it honors one of my heroes," said Cohen. The importance of the topic also attracted his attention.
"September 11 was a life transforming experience," said Cohen. "It shattered our sense of invulnerability and invincibility. Less than a dozen people succeeded in killing more than 3,000 people on American soil, and our military could not protect us from individuals acting without state sanction. The government has two tasks, to protect us and to protect our privacy and individual liberty, in a world where travel and telecommunications are rendering us borderless."
With that observation, Cohen opened the debate titled "The Bounds of Post
9/11 Freedoms" that featured a panel of experts in the fields of constitutional law and civil rights, from the halls of justice and academe.
David Rudovsky, senior fellow at the University of Pennsylvania Law School, and Paul J. McNulty, U.S. attorney for the Eastern District of Virginia, debated the extent to which individual rights have been affected by 9/11.
"Individual rights have been greatly affected," said Rudovsky, who believes this is generally the case in times of war. "We've seen what war can do to civil liberties." He cited the wrongful internment of 120,000 Japanese Americans during World War II and anticommunist rhetoric of Sen. Joseph McCarthy during the Cold War that rendered many "guilty by association."
"We don't do well in times of war," said Rudovsky. "No nation does. We do grievous damage to the fabric of our civil liberties."
Specifically, Rudovsky is more than a little concerned about some 762 immigrants who, in the aftermath of the September 11 attacks, were detained by the U.S. government on charges of suspected terrorist activity. Held for up to 80 days without the benefit of confidential conversations with their attorneys, they were tried behind closed doors. According to Rudovsky, not one was directly connected to terrorist activity.
"Was secrecy necessary for national security or to keep us from knowing the facts?" asked Rudovsky.
Rudovsky referred to a recent report issued by the inspector general of the Department of Justice, which cited problems with the department's procedures surrounding these detentions. He also expressed grave concerns about the USA Patriot Act that expanded the FBI's role in combating terrorism.
"The Patriot Act was passed in Congress only 30 days after 9/11, before we determined what happened and why," said Rudovsky.
Unimpressed that it passed by a vote of 98 to 1 in the Senate and by the majority of the House, Rudovsky said, "The courts also approved of Japanese internment."
Conversely, McNulty argued that individual rights have not changed at all since 9/11. "The only thing that has changed is our realization that we are vulnerable," he said. "The American public wants those charged with its protection to remain aggressive."
With regard to the post-9/11 detainees, he said they all were in the United States illegally. Their "out-of-status" designation made it lawful to detain and deport them, he said. As possible enemy combatants, they were not entitled to a public trial, McNulty argued, adding that, in his opinion, the rule of law prevailed.
He described the passage of the USA Patriot Act as democracy in action. "Like it or not, if a bill passes in Congress, it's the law," said McNulty.
"Terrorists hate our system of government, our constitution, our democracy. They are instructed to use our liberty to perpetuate their attacks. At the end of the day, our rights mean nothing if our nation doesn't exist. Our response must be up to the challenge," McNulty maintained.
University of Michigan Law School professor Richard D. Friedman and James B. Comey, U.S. attorney for the Southern District of New York, debated the use of military tribunals instead of criminal courts to try the cases of suspected terrorists.
Both agreed that individuals such as Osama bin Laden pose a challenge to the traditional criminal justice system, but Friedman argued that little is to be gained by the use of military tribunals.
He cited the case of Dr. Samuel A. Mudd, the Maryland doctor who treated John Wilkes Booth following Abraham Lincoln's assassination. Mudd's grandson fought until his death to clear the name of his grandfather, who was charged as a conspirator, convicted, and later pardoned. At issue was the use of a military tribunal rather than a civil trial in a Maryland courtroom.
Acknowledging that it is impractical to try suspected terrorists in criminal proceedings, Friedman said, "I think it would make a statement about our system of government if we were able to try bin Laden in a regular court of law."
Comey agreed that the civilian system should be used whenever possible but noted "a broad consensus in the criminal justice system that in some cases the military should respond rather than law enforcement.
"There are those for whom the criminal [justice] system will not work," said Comey. To try bin Laden in a criminal court "would make a mockery of the civil system," according to Comey. "We should try him on the deck of an aircraft carrier rather than put 12 people through the ordeal of sitting on a jury."
Convening a military tribunal is a big step but one that is reasonable for the president to take, Comey said.
"When we're talking about people who are willing to die, my tools [of law enforcement] don't work," said Comey. "We don't have the pliers to squeeze them like that."
He added, "We should use every tool, but judiciously. In 30 years we don't want to be ashamed of what we did."
Daniel W. Sutherland, officer for Civil Rights and Civil Liberties at the Department of Homeland Security, and Frederick Schauer, the Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government, debated the extent to which first amendment rights have been affected by national security.
According to Sutherland, "U.S. Secretary of Homeland Security Tom Ridge and President Bush feel strongly about protecting civil liberties." He quoted Bush as saying, "We must defend America while protecting our liberties." He offered as proof of this commitment the fact that the Department of Homeland Security has its own civil liberties adviser in a senior leadership position. He praised the Department of Justice for issuing a recent report that eschews racial profiling.
"There is a move away from a focus on race and ethnicity to other factors, such as identifying the country issuing the passport and analyzing ticketing patterns (for example, the purchase of one-way tickets to the United States).
Refuting the charge of unchecked power, Sutherland cited outside pressure to uphold civil rights. "We are pressured by the public, the media and the inspector general," said Sutherland. Beyond those factors, Sutherland feels the weight of history. Recalling the impending 40th anniversary of the historic march on Washington, he quoted a passage from the Bible that Martin Luther King Jr. invoked during his "I Have a Dream" speech: "Let justice run down like waters and righteousness like a mighty stream."
Schauer acknowledged the sincerity of Sutherland and Secretary Ridge but was not swayed by Sutherland's characterization of the good intentions of the new homeland security agency.
"We don't allow people to investigate themselves. The Justice Department's position appears to be ‘just trust us.'"
He said the use of racial profiling may save time and money but it is "inconsistent with American ideals." Therefore, according to Schauer, "the issue is really free speech versus money and equality versus inconvenience. To be true to our ideals, we must all pay a price."
Schauer said he is troubled by arrests for acts of free speech, such as flying the flag upside down, an act that is protected under the Constitution. "The administration must accept the authority of the courts to interpret the Constitution for everyone," he said.
Stanford School of Law professor Mariano-Florentino Cuellar and Kris W. Kobach, counsel to U.S. Attorney General John Ashcroft, debated the delicate balance between national security and U.S. immigration policy.
Like Rudovsky, Cuellar expressed his concern about the treatment of the post-9/11 detainees, mostly Middle Eastern men who were held after routine traffic stops. "They were all cleared but still detained for months," said Cuellar. "Some merely had pictures of points of interest in New York City, like the World Trade Center."
"I'm not satisfied with how we treat immigrants," continued Cuellar. "I think we can do better. Immigrants have the right to due process." According to Cuellar, the executive branch has too much discretion in immigration cases but not much judicial review. "Unchecked power breeds abuse, even by people with good intentions," he cautioned.
Kobach took issue strongly with Cuellar's characterization of the detainees. "They were ‘cleared' for deportation, not from wrongdoing," he explained. According to Kobach, some were known terrorists, and deportation was the most expedient course of action. "They didn't merely have pictures of the World Trade Center, they had diagrams," Kobach said.
To underscore the scope of the problem, he said, "Our inability to control our borders was a national security threat. … We had to plug this vulnerability."
Kobach discussed a few of the measures that have been put in place since 9/11 to secure the borders. They include increased checks prior to visa issuance and a requirement that immigrants register periodically. "We merely ask them to prove they're doing what they said they came here to do," said Kobach. "Periodic registration has been required in Europe for decades. We are merely coming up to speed with the rest of the world."
Kobach's view of the government's treatment of illegal immigrants differed markedly from Cuellar's. "There's abundant due process," Kobach said. "Only 13 percent of all people who go through our immigration courts—at a cost of millions of dollars—are successfully removed from the country."
According to Kobach, prior to September 11, failure to enforce the immigration laws "made a mockery of our rule of law … We are trying to change that," he said. "We're taking prudent measures that had to be done post-
9/11; if only we had done it sooner is my only wish."
In his concluding remarks, panel moderator Cohen observed, "Our lives are never going to be the way they were before September 11. Our government is going to have to be more involved in our lives. The war on terrorism will not be won on the battlefield. "Instead, it will be conducted by good covert police action and increased sharing of information globally."
Audrey Fischer is a public affairs specialist in the Public Affairs Office.