The Cost of Freedom -- Civil Liberties, Security and the USA PATRIOT ACT
Subject: Ruth Wedgwood
Interviewer: Alison Rostankowski
The segments included in this interview* excerpt were recorded in January 2004, as part of The Cost of Freedom - Civil Liberties, Security and the USA PATRIOT ACT, a look at the history of civil liberties in America and the controversy surrounding the USA PATRIOT ACT. The documentary is a co-production of The Duncan Entertainment Group with Iowa Public Television. Ruth Wedgewood is Professor of International Law and Diplomacy at Yale Law School. Wedgwood is currently a senior fellow at the Council on Foreign Relations and adviser to the Department of Defense on the issue of military tribunals.
(* This transcript has been edited due to length.)
Currently, there is a lot of debate around the establishment of military tribunals. Many are voicing sharp criticism of military tribunals. Critics argue that the military tribunals potentially undermine America's basic commitment to such values as democracy and freedom. What is your reaction when you hear those kinds of criticisms of military tribunals?
Well I think there's been a lot of heat, some light. But a lot of heat that perhaps is not connected to light. I think people forget number one that the law of armed conflict, the law of war has largely been developed in military tribunals. These are not some anomaly; it's not Pinochet ricocheting in by parachute. This is the place where in fact the law of armed conflict and its norms have been developed. Nuremberg was a military tribunal. The Far East trials in WWII were military tribunals. Military commissions have traditionally been the place where this branch of law was enforced. It's interestingly in the Geneva Convention itself, the third Geneva Convention of 1949, which deals with prisoners of war, article 84 of that convention requires that trials of POWs be held in military commissions or military tribunals. It prefers them to civilian courts. I think on the premise that a brother officer is going to feel a certain reciprocity that there before the grace of God, go I. And so it's not an option, in fact under Geneva '84, you have to try the person if he's a lawful combatant, in a military tribunal unless your own soldiers would be tried for like crimes in civilian courts. So the last decade of the '90s where we've gotten used to the idea of the civilian tribunal for the former Yugoslavia set up by the UN Security Council, or the civilian tribunal for Rwanda set up by the Security Council or the International Criminal court set up by treaty, those are civilian courts but those have not the typical way of trying war crimes accusations. So the M word here is not anomalous, it's not unusual; it's in a very long tradition.
Secondly, I think you have to judge the product by the product's qualities. I think 50 years after Nuremberg we all have a very different sensibility than we had before. And the rules that have been crafted for the military commissions, which were done with the advice of a great many people who I think, would carry some significant weight in this country. People like Bill Coleman who was the former Secretary of Transportation under General Ford. A very highly regarded African-American leader of the bar. Or Lloyd Cutler who's the former White House Counsel under Carter and Clinton. Or the former head of the FBI under Carter, Judge Bill Webster of the Eighth Circuit Court of Appeals, formerly. Or Griffin Bell who was Attorney General under Jimmy Carter. Don Rumsfeld as Secretary of Defense, when he was given the task of trying to design military commissions for this conflict, sought all of their advice. And I think took it to heart. It was across the aisle, it was advice on appearance as well as substance. And the attempt was to make the commissions as liberal as one could possibly do. At the same time that you had to deal with two or three practical, functional problems. And those problems are well known. One is that you might have to, in very limited cases, consider evidence that could not be published to the world at large. And that's something that can't manage in federal district court, given our current rules, only in a military commission. Secondly, to let in a broader range of evidence. Whether it's hearsay evidence or confessions that were appropriately taken while a person was in military custody.
There's a different problem here, that the battlefield is not a crime scene investigation. You don't always have the first hand witnesses forth coming that you would hope to have in a Republican, collegial society. So you may have to consider, for what it's worth and no more than that, evidence that doesn't have all of the crime scene providence that you expect in an ordinary, civilian, peacetime case. Third, there's an issue about security. I think that a concern that with al Qaeda having bombed the World Trade Center six weeks from, six blocks rather from the southern district of a New York Courthouse, that the problem of vulnerability shouldn't be dismissed out of hand. And indeed, one of the jurors who later was interviewed, perhaps inappropriately, by the New York Times after the embassy bombings case verdict, a gentleman who happened to be Jewish, said he had felt intimidated in his choice of penalty. They didn't want to be singled out by al Qaeda for revenge. And that sense that they may be less than forgiving in their response to verdicts is a real one that judges who have dealt with all these trails in the past, the federal district judges, they have 24 hour protection with very serious U.S. Marshals providing personal security for them and their families. And that's not something that's available to jurors. So I think that too, I think made it seem appropriate perhaps to think about using the traditional venue of military commissions. But somehow I think in the rhetoric of the debate, the M word has gotten all mixed up with Franco and Pinochet and the Gulag and I real harem-scarem rhetoric without I think a fair hearing of what the attempt has been, which is to provide as much due process as one possibly can consistent with the felt need to try some of these cases while the conflict is ongoing. And frankly, I think there may be cases you shouldn't bring. If you can't bring convincing proof, and have the bulk of it be public, maybe you shouldn't bring the case at all. You can certainly hold people, lawfully, under the law of war, as combatants, captured in the battlefield for the duration of the conflict. They don't have to try people. But if you do try them, you should take seriously what criminal lawyers mean by the weight of the evidence, and that really is something that you almost have to be a criminal lawyer to have an intuitive sense of. It's far more than civil law; it's far more than preponderance or a case about money. It's a kind of finger feeling it's a specificity of proof that criminal lawyers gain by practice but that's not always evident to historians or civil lawyers or journalists or others. And so if you can't bring a good case, we shouldn't bring a case at all. But at the same time I think that there's been a kind of hysteria whipped up, almost a kind of, I wonder sometimes, kind of a sublimation of anxiety about al Qaeda itself. That if you pretend that all the ill has been caused by George Bush then there's no problem or danger from al Qaeda.
If we can expand a bit on that final point that you just made. You have identified some very distinguished experts who have worked on these issues. You talked about how this has always been the norm and you have given lots of examples. My question is, if the critics know those things too, then why the fear? Why the panic? Why the rhetoric around this particular issue?
Well critics can know things and there's a difference between understanding, and kind of a superficial knowledge. I think it's frankly hard for me to place a lot the source of the elevated rhetoric, to put it kindly. It partly, people may prefer that things be done with the concurrence of two branches of government. And certainly for a President that's most comfortable if he has the Congress openly approving everything he does. I think in this case the very fact that the Congress, though, voted almost unanimously, I think there was one dissenting vote, to have the President go to war against al Qaeda, getting him the power to make war against the organizations and individuals that "he" determined and the statute uses the language "he" determines the people "he" determines were part of the organizations that brought you 9/11 That is a very broad endorsement by the Congress. It means it is wartime that's as close to a technical state of war as we ever get anymore. In fact, the phrase is now used as a state of armed conflict. But it is a declared war, it's a war endorsed by the Congress. And therefore the powers of the President as Commander in Chief fall into place. But I suppose we haven't really been engaged in a serious, existential war, I mean, one where in some sense, survival is at stake. And I don't mean to be over broad about that. But again, what made me a hawk on Bin Laden and al Qaeda after many years of slumber is that well - I did a debate at Yale on him in 1998 and began to read around in the federal broadcast information service network, it's a wonderful online, real-time translation of press from around the world. And it was quite clear in '98 and '99 that Bin Laden at that point was trying to find a tactical nuclear device if he could find one on the black market in mother Russia, where everything is for sale - material, your mother's cousin, anybody, anything. And with a number of nuclear artillery shells that were present in the Warsaw Pact Armies, with the fear that an economically crumbling Russia might not have the handle that it should have over both suitcase bombs or just simple material from reactors, fuel rods.
The fear that Bin Laden's ambition might be realized is a serious one. Was and is a serious one. And you might ordinarily say, "Oh who would - no one would ever do that." But no one would ever have done what Bin Laden did on September 11th. There's almost a kind of common law, customary law of terrorism, horrible as terrorism is, you kill enough women, children and innocents to get on television. Five, ten, a hundred, two hundred. But the idea of killing three thousand, or ten thousand or thirty thousand in one fail swoop is something that just was not within the imagination even of political terrorists. So that kind of nihilism, where he has, where Bin Laden openly has spoken of an ambition to have a Hiroshima kind of event where if the evacuations hadn't worked right on 9/11, you could easily have killed fifteen thousand people where Ramsey Usef, when he was caught, after the first World Trade Center bombing, after he was interrupted, God Bless, in his plan to take down eleven passenger jets, spoke as he was taken into custody of the original ambition to have the towers topple into each other, and topple across lower Manhattan. If you have a group that openly avers the desire to kill thirty, fifty, a hundred thousand people, that's a very different kind of event. That really is an act of war. It's different in kind and quality from normal terrorism. And in that kind of a situation I think whatever one's historical chagrin, about the Palmer Raids or the treatment of Japanese citizens in World War II, you still have to be very serious in your response. It simply doesn't make sense to say that because we regret some of the things that we've done in other wars that therefore anything we do in this war, no matter how measured, how careful, how transparent, is necessarily excessive. That is just to make light of the situation. So I wonder sometimes, a lot of these debates I think are continuations of really quite ancient debates. Is Alger Hiss guilty? Are Sacco & Venzetti guilty? Was Joe McCarthy excessive? I guess my point is that whatever your political background, surely you can agree that al Qaeda's dangerous. Alger Hiss could be innocent and al Qaeda would still be dangerous. And so I guess part of my conversation over the last two years has been the attempt to talk to people who come from a background similar to mine really, New Yorkers, people who may have come from a trade union background or a central Democratic background, to say, don't put this into the adversarial boxes that have been created over the last fifty years for other political debates. It's too serious. Put to one side what you think of Alger Hiss; just understand that this man is exquisitely dangerous. And there I think, there's been some change in the center of conversation. I think people do - can see that al Qaeda now is dangerous. That in fact there is a right to detain combatants who are caught on the battlefield. You can't do that by the standard of a criminal trial beyond a reasonable doubt, just you haven't got that kind of proof, available. But I do think that there is still perhaps a kind of luxurious feeling, we can have it all. Perfect privacy, perfect fact finding, perfectly delicate process, if you like. And at the same time be able to undertake the kinds of operations that we need to disable al Qaeda in its very far-flung network.
You may have had the recognition in '98, certainly on September 11th, a fear of exactly what al Qaeda could do. When you looked around after this event and with that recognition what did you identify in terms of the legal sphere, were holes that needed to be filled in order to combat this? Because I assume many people would say that the flaw here was in intelligence rather than the flaw is in the legal system. What did you see?
Well I think even before September 11th, plenty of people had identified the problem that we couldn't share what we knew from the criminal justice system with what we knew from the intelligence side. A terrible flaw. Fatal flaw, almost. That the CIA, which was the only real source of collection overseas, could not talk to the FBI, which is the major collection agency at home. And that was in part the reform attempts from the '60s and '70s, the Civil Rights movement, and the Church Committee hearings. What seemed sensible at the time to create a kind of firewall between the intelligence agencies and the criminal justice agencies and have each go and do their thing. But with a real time terror network that goes on-shore and off-shore, where FBI agents can't collect abroad, 'cause their overt. They can to some degree with the permission of their host country. But as soon as the Yemeni government wants to turn it off, they have to leave. So you had this really absurd situation where knowing how dangerous al Qaeda was, we still couldn't pool what we knew from the two halves of our brain. It was like a lobotomized government. And frankly this problem had been identified before September 11th, I gave a talk in June of 2001 where a couple of agency people came up to me afterwards and said that, "You're right. We're not pooling, we can't pool." It's deadly. And when I went to see the head of the Senate Intelligence Committee after that the general counsel of the Senate Intelligence Committee to just chat about where things were politically, whether one could change this, the consensus was that the architecture left over from the '70's, the Church Committee kind of architecture, was so much in our bone marrow it was so orthodox, that no one could change it. That it was simply something one had to live with. Even knowing the real crippling effect it could have on real-time, appreciation of what al Qaeda was doing. So I think parts of what happened post 9/11were kind of a shock of recognition that yes indeed we should have done it a long time ago, and we should have rank ordered, you know, the possible ills in life. We should have built in everything we know about paper trails and accountability measures but still made it possible to respond in real time to al Qaeda. So, an intelligence pooling, absolutely critical.
Second issue was whether you could ever use an intelligence wiretap against not simply a foreign country, but a foreign terrorist network. 'Cause up until September 11th with the PATRIOT Act passing Congress, you could wiretap Bulgaria if you like, but you couldn't wiretap al Qaeda. Unless you could show they were working for a foreign country. Kinda crazy. And with the PATRIOT Act one of the other important changes was to say, yes you could wiretap a foreign terrorist network just as if it were a foreign government. And another change that was made there was to say you didn't have to be telling fibs or fables about what your purpose was. You could say with this intelligence wiretap, I anticipate that I may be treating this matter both criminally and intelligence ops, so long as a significant purpose is intelligence I can use an intelligence wiretap. 'Cause in the old days again, pre-9/11, if you thought a case might ever go criminal, you could not use an intelligence wiretap, there was the desire to keep these two worlds entirely separate. So partly what you needed, I'm afraid to say was September 11th as a way of being shook awake, I suppose, and understanding that it really was a serious group of people out there who had to be countered. Some of the other issues again, how you try a case, we are again, deeply familiar and committed to our traditional way of trying cases in federal court where you never allow anything other than the immediate eyewitness to come in and testify as to what he saw. Where you don't allow any form of hearsay. Where you don't allow the French method or the International method of dossiers where you might have some documentary evidence coming in. In general it has to be the first-hand eyewitness who actually saw it coming in a live voice to testify in that courtroom. And that's something that was not done in the Yugoslav tribunal, the Rwanda tribunal, Nuremberg, the Far East. But we're used to it for normal, OJ Simpson style crimes. And we feel, again in peacetime, that you can get the level of rape, robbery and murder down to an acceptable level by not successfully trying every case. Just trying some of them. The problem with al Qaeda is that you're asking government to do something very different. You're asking them to anticipate every attack. Because every attack, if it involves catastrophic weapons, and is used against civilians, if you have WMD, and deployed against civilians, you really can't afford to let ten percent of folks go through with their crimes. So you're asking government to act before hand rather than retrospectively afterwards. You're asking them to have a kind of 100 percent batting average. You're asking them to gather evidence against a group of people who largely come from abroad, speak a foreign language, have deliberately chosen to compartmentalize network with counter-surveillance training, and hoping to do that by ordinary methods. It's tough. So I think really 9/11 was the culmination of a decade where we were very slow to acknowledge that al Qaeda's ambition was significant, that it had a very significant learning capacity, that it was quite content to take the fight on-shore as opposed to just bedeviling our soldiers and our diplomats abroad. But I think really after the east African bombings in 1998, where two hundred or more Americans and Africans were killed, and forty-five hundred, four thousand five hundred people were wounded, many of them grievously in the destruction of the two embassies by then we should have really had a more serious, I think, acknowledgement of what we were facing.
You mentioned the Church Committee in your last response. You also mentioned that just because these things happened in the past, civil rights abuses, etc. doesn't mean they are going to happen right now. How do we guard - what checkpoints do we put in place so that we don't look back on this in twenty, thirty years from now and find that we overreacted out of fear or trampled any constitutional rights? How do we keep checking against that?
Well, we're a very different country with a very different culture. It's been fifty years of human rights law. Fifty years of evolution in the law of armed conflict. I think the sense of being able to do targeted investigations is much greater. Cops don't, for the most part, one hopes, beat up people anymore. Whereas fifty years ago, you know, station houses were not some place you wanted to go. So the effect of fifty years of jurisprudence of the Warren Court, the Berger Court, the Rehnquist Court has made a difference. Fifty years of human rights law, the universal declaration of human rights. The civil and political rights covenant. The evolution of the law of armed conflict. But at the same time I worry that again there's too easy an assumption that you can simply translate from peacetime to wartime. And Churchill would have been the first to say that in the middle of a conflict you can't tell your adversary everything you know about him. So the kind of open file prosecution that we're so used to, you know mi casa es su casa, come see my files I'll give you every statement anybody's ever made that had anything to do with the investigation. That doesn't work very well if you're trying to keep al Qaeda from knowing what you know about them. It may be an argument for putting many trials off until the al Qaeda's back has been broken. But at the same time then you have to give due to the appropriate weight to the prerogative of wartime which says that you can keep someone interned as a combatant for the duration of the conflict on something considerably less than proof beyond a reasonable doubt.
Some argue, for example the ACLU, for civil trials versus military tribunals. They suggest that the framework to avoid many of these things is already in place, for example, the Classified Information Procedures Act. Are they misguided in suggesting that those remedies are already in place?
Well I think some people who join the issue, don't know their criminal law very well. What ironically thrust me into part of this debate was not self-selection but just having been a federal prosecutor, having done war crimes work with the UN and The Hague and the Yugoslav tribunal, having done law of armed conflict. And way back when, in my early misbegotten youth, right out of law school, after I clerked for Harry Blackman on the Supreme, I actually was part of the little group of people that wrote the Classified Information Procedures Act. And the attempt back then in 1980, was to use a statute to make it easier to try cases that involved classified information. The problem at that point was in a series of prosecutions, both of alumni of intelligence agencies, and of bad guys who were spies and such. There was an attempt by the defendants to use the threat of broadcasting intelligence information at large as a way of dissuading the government from bringing charges. What the Classified Information Procedures Act did, it was, and it was based on actually an Indiana prosecution of a silly young man named Cab Pillies who decided to compromise a very important satellite system by throwing the operational manual for the KH11 satellite system over the fence of the Russian Embassy in Athens. A ten billion dollar system. Many people casually would remark that that might have had something to do with the failure of SAL 2. Because if we can't see what the Russians were doing, they knew what we could see, then we were less able to verify what they were really doing. And when Cab Pillies was tried, same kind of problem. The fact that the Russian's have the operating manual doesn't mean you want every little country around the world and every detail about the operating system. So in that trial we played around with a number of procedures to try to figure out ways to minimize the kind of collateral damage. And among the things done was the idea that you could put a document in evidence but redact part of it, edit part of it out if it wasn't relevant. Or, substitute a generic description for a particular particle. Let's say if the satellite system says that the satellite can see down to the following number of miles or meters or whatever the measure tens of yards whatever the measure might be, that you wouldn't put the particular number in. But rather, just put in a like a sort of quantity x. 'Cause it doesn't matter. Third to be able to force the defense to make a proffer of what they hope to prove if they're gonna introduce classified evidence. Protective orders to keep people from sharing in and outside the courtroom. But, push come to shove, what the Classified Information Act could not do was to change what was taken to be Sixth Amendment jurisprudence. Which says that if you're gonna actually offer something into evidence against the defendant, then it has to be made public. That's just not only a rule of procedure but it's taken to be quasi-constitutional. And there's, I think, just huge misunderstanding amongst lay people and non-criminal lawyers. You can't close the courtroom in a federal district court. Period. Yes, you can have a sidebar. Yes, you can have protective orders. But when you're offering proof, it's open to the public, including al Qaeda. Now if Congress were to say that given the wartime setting, we're gonna have different rules for federal district courts, I think the court would probably sustain it, the Supreme Court. But it would take Congress to do it. Most federal district judges would not feel that latitude on their own. I've been surprised at how passive Congress is. But CIPA, this Classified Information Procedures Act does not solve your problems. And you have to try a criminal case perhaps to appreciate it. The document your going to put in to drill the nail through the defendant's legal heart if you will, pardon my overwrought metaphor it has to be made public, it is made public. It's one of the costs that go into trial. There are plenty of criminal cases that are not brought in ordinary circumstances because you don't want to compromise intelligence information. Every prosecutor has a story of starting out, you know blissfully, innocently in the grand jury, stumbling around in some transaction and a discovering that he's crossed wires with other agencies and doesn't bring the case. Just fact of the matter. Secondly, on hearsay evidence. The hearsay rule that you can't offer out of court statements unless they're the defendant's own statements, has been made quasi-constitutional as well. So you could not offer into proof, for example, the confession made by co-conspirator. Just can't do it. Sixth Amendment, right of confrontation. Could Congress change it in wartime? Probably. Supreme Court would probably sustain them if they had appropriate fact finding. But can a federal district judge do that on his own? No. So, I have a lot of pals who run a lot of these groups, so. Some of them are ex-prosecutors. And they know better. But a lot of people don't understand how awfully constrained you are in proving a case in federal district court. And I think frankly there's been a lack of creativity on the part of Congress or of some of the civil liberties groups in trying to offer alternative ways of trying cases. I've been waiting for somebody to say, "Shouldn't we perhaps have a terrorist court. Defined as you wish." But I think actually stranger there's been a certain. I think there's been a certain comfort in fact unspoken. In keeping this in the military box. Saying that to be tried in such a court you will have to be somebody who's done something that looks like the actions of a combatant. It keeps it in sort of a safe box. Whereas a general terrorism court that could reach financing, or harboring, or a great many other acts, I think might give greater discomfort. But in general I have to say… academia and the critics have not been very forthcoming in proposing any alternative framework to handle this. They just keep saying, "Well, you brought various terrorism cases in the '90s, you got convictions there, that proves that's sufficient." The answer is no, that the first World Trade Center case, the embassy bombings case, were brought successfully in southern district of New York, got convictions, but al Qaeda kept on merrily. And indeed Ramsey Usef who was wanted in the first World Trade Center case for the '93 bombing almost pulled off this horrible Bojinka Operation which was going to take down eleven airliners across the Pacific. And he was foiled only because he happened to have a fire in his apartment and the Filipino fire department happened to come and respond and noticed something was a little unusual.
Can you just explain briefly the actual legal grounds that allow the President's order establishing military tribunals? What authority does the President have to issue such orders?
Well the President is the Commander in Chief in wartime, in declared war. Declared by the Congress. It's actually part of his duty under the law of war, to enforce the law of war. There's actually an affirmative duty to repress violations to punish or vindicate the law, in the face of violations of the law of armed conflict. And clearly, al Qaeda, without dispute, in targeting civilians has violated the law of war by anybody's lengths. And I think the view of the administration, which I share, is that private groups are also not free to go to war. That war in public international law is a prerogative only of nation states. But not any self-appointed group can just declare that they're warriors and are going to willy-nilly target the Pentagon, the U.S.S. Cole, barracks. Riyadh Training Center. Picking off shipping, military ships, and military personnel. So, that too, unlawful combatantcy, making war when you don't have the right to make war, is another ground for complaint about al Qaeda. But that's part of the President's power as Commander in Chief. He would be remiss if he didn't prosecute those crimes. And the use of military commissions has been a constant throughout American military history. It was used in World War- it was used in the Civil War. I'll give you one very appealing example. The man who ran the Andersonville prisoner of war camp, and grossly mistreated prisoners in the Civil War, he was tried in a military commission. The conspirators who tried to kill, who killed Lincoln were tried in a military commission. Most of the war criminals in World War II were tried in military commissions. In the Far East and in Europe. A military commission is a war court it's not the court martial designed for ordinary peace time failure to polish your uniform, insubordination, rape, robbery and murder in a military base kind of trials. These are war courts. Sometimes they're held in the battlefield itself, sometimes they're held behind lines, but they're designed for wartime crimes and violations of law of war specifically. What's been interesting is that every time Congress has acted to reform the court martial system, they have also openly acknowledged that the commission system is a parallel, authorized system. In 1920, when the articles of war, so-called, were reformed. In 1950, when the uniform code of military justice was enacted, on each occasion, the Congress openly said that the changes on court marshals did not in any way intrude upon the President's authority to convene military commissions. So the idea that this is the President off on his own, off on a snoot, is just not true. The legislative history says to the contrary. So too some people have said, "Well it's only for spies." Not true. If you look even at the 1863 Union Army manual, crafted by Francis Leiber who was a Swiss-German-American Columbia University Law Professor, commissioned by General Halleck to write a manual on the law of war called, General Order Number 100. Leiber has at least four different kinds of so-called unlawful combatants. People who have gotten out of uniform who are bushwhacking behind enemy lines to destroy bridges, or ferries, or shipping. People who are not obeying the stricture that you must identify yourself as a soldier and therefore make it possible to discriminate between you and a civilian. So some people - serious academics have been quite startled. Have said, "Oh, that the phrase unlawful combatant was invented by the Supreme Court in the Ex Parte Quirin driven saboteur case in 1942. Go read the Leiber code from 1863. Read the Brussels Declaration from 1874. Go read the Hague Conventions from 1899 to 1907. That's always been the case. That to be admitted to the privileges of belligerency, meaning you have a right to fight a war. You have a right to fight for your country and not be considered homicidal. The act of killing in warfare, as sad as it is, is not murder. When it's committed by a soldier for his country. But that privilege assumes that your side will obey certain minimum conditions of having a commander, wearing some identifiable insignia or uniform so you're not endangering civilians. And so too, that you have to, in general, obey the law of war on your side. You can't have asymmetric war where you say the other side has to fight by Marcus of Queensbury rules but you can do any old thing.
So those arguments you just made, are those important distinctions, are they arguments why the prisoners at Guantánamo should not be afforded prisoner of war status?
Well the al Qaeda folks at Guantánamo, certainly. They're not fighting for a nation state. They have as their avowed purpose the fatwa that says, attack all civilians. Jews, Christians, Westerners, Muslims. Anybody who al Qaeda doesn't like can be attacked. And that is utterly illegal of the law of war. And as well they're going to attack any U.S. military installation that they care to or battleships or and that as a private group is unlawful. And the Taliban, it's a closer case, but even the Taliban is not relieved from the obligation of identifying itself as an armed force and generally obeying the laws of war. And what happened in Afghanistan may be nearly unique but what, but really the Taliban was almost taken over by al Qaeda. The Afghan regime, the Taliban was required by the security council to surrender al Qaeda and refused to, despite mandatory decisions under Chapter 7 of the UN Charter, which the Taliban were bound to obey. Instead they became a kind of a host for al Qaeda. And they were never of course the government that was seated in the general assembly that was the Northern Alliance. But even apart from that they became this kind of viral host if you like. And so the President's decision, which I think was a perfectly reasonable one, was that they flunked the four-part test. That you have to- have to be an armed force of a nation state, you have to have some of organization, you have to have a commander, you have to generally obey the laws of war, on your own side. So I think the ultimate decision George Bush acknowledged that the Geneva principles were important, that we would follow them wherever we could, but that in the case of al Qaeda and even the Taliban, that they didn't meet the four-part test.
The recent warnings, I'm thinking particularly of the military tribunals, the Padilla case. The federal court there is agreeing with the critics that the President's order exceeded his Constitutional authority. They cited the '53 Supreme Court ruling of Truman and the Detention Act of 1971. What is your opinion of this decision and if it was the wrong one, why was it misguided?
Well, the dilemma of Jose Padilla is a real one. He's a alleged Chicago gang member, born in Brooklyn, who was recruited by al Qaeda, went to the region some time ago in 1998 and tooled around Saudi Arabia, Pakistan Afghanistan, then hooked up post-9/11 with a man named Abul Zibidah who was a very senior planner in al Qaeda. And offered to Abul Zabidah, that he Padilla would undertake a dirty bomb plot. That he would set off an emission that would scatter fissile material in some American city. And the attempt to try to make an area uninhabitable for a long period of time. If you can imagine Lower Manhattan or the Mall area in Washington becoming uninhabitable. And Abul Zabidah took him seriously, talked to him and then sent him to get explosives training in Pakistan. Then in 2002, Abul Zabidah sent him to see some other people in Pakistan to talk about going back to the U.S. and either doing target spotting for such an enterprise or picking out targets and actually engaging in the bombings of train stations and hotels. So, on his way back, if you like, Padilla was in the hot pursuit of agents. We probably could have, and perhaps we should have arrested him in Pakistan before he got on the airplane, but instead we followed him to see where he would go. He went to Switzerland and then to Chicago he was arrested in Chicago initially as a grand jury witness, but you can't hold people very long in that capacity if they won't testify, and they can't claim the fifth amendment right against self incrimination, unless you're willing to give them immunity from criminal penalties. We can't then force them to testify. And the question then was what to do with him. You have a very good intelligence case, from Abul Zabidah's mouth corroborated by circumstantial evidence that Padilla was doing what this account says he was doing. But you have almost nothing that's admissible in the highly restrictive rules of admissibility of evidence in federal court. Great intel case, dangerous guy, but no ability to bring a criminal case unless you were to take Abul Zabidah back from abroad, bring him to the Chicago or some other courtroom, try to persuade him to function as a witness. He's a hostile witness at best; you need him as a very important intelligent source for ongoing debriefs on a host of other issues. To decommission him as an intelligence source to try to criminally convict Padilla would be I think seen as kind of a strange triage choice. So what do you do? And that's where Congress hasn't provided very much. But it is part of the President's power to detain people who are engaged in attacks. And in an ordinary battle setting, it's not just the moment you pull the trigger; it's as you scope the targets around the hill. If you take a classical battlefield, someone who's holding the horses can be a combatant. But here you certainly have a guy who was at least allegedly, actively engaged in target spotting and in carrying out attacks. He offered to carry out attacks. He's not someone's mother who did their laundry. What do you do? The district judge in the Southern District of New York, a very highly regarded man named Michael Mukasey, uh longtime friend of Rudy Guiliani, scholarly, academic, thoughtful, just really well-regarded in New York as a judge said, "Well he is a combatant however I'm going to require the government give me some proof of that." Some evidence was the standard. And the affidavit that was filed by a Department of Defense official named Michael Mobbs, which described the intelligence given by Abul Zabidah was that by judgement casing to be initially sufficient but he was going to give Padilla the chance to see a lawyer and present any rebuttal evidence that he wished to present. The Second Circuit, to people's amazement frankly, said in a split decision 2 to 1, "He's not even a combatant. No matter what the government shows, you can't hold him as a combatant. You're only option," said the court of appeals, "is to either hold him as a grand jury witness," which was silly, been there, done that, can't hold him, probably took the fifth, "or to indict him." And that if you like, crystallized the problem of using ordinary criminal law for this purpose, because in ordinary criminal law, until you can prove your case beyond a reasonable doubt by traditional, admissible evidence, the person has to be allowed to roam free. Run Free. It's not a whale or a porpoise in this case. So there really was no other power available to use other than that of the Commander in Chief and his right and duty to interrupt an ongoing attack. And that's the part the Second Circuit, I think, got wrong. They said, "Well there's this thing from 1971 called the non-detention act which says that no American citizen can be detained absent the authorization of Congress." The government replied and said, "Hey we have a declaration of war. That's an authorization to hold combatants who are engaged in ongoing attacks." So the court did it as a matter of statutory construction, but I think they put an unreasonable burden to say that Congress has had to have specified out loud that yes you could hold people who were engaged in attacks. I think a more reasonable interpretation is that when Congress declared war on al Qaeda that that power of the President went without saying.
How long is it okay to hold someone without charge? Padilla's been away without any opportunity to talk with anybody for over one year now. The critics would say they might accept the argument you've given so far but when how long before they are charged?
Well in Ex Parte Quirin they were charged with a capital offense and put on trial and hung. So there, of course, you have exquisitely good process you should, anyway. Although, I think, fifty years later we would try that case differently. But when you're holding somebody as an interned combatant, it is a different status. In World War II, we had about 400,000 Germans and Italians held in the Continental U.S. as prisoners of war. They didn't go to court, they didn't get lawyers, they didn't have habeas corpus. It's a different world. It's the world of war. And when you capture somebody on the battlefield then you are required to take their surrender. You can't shoot them. I mean ironically enough the power to intern somebody as a captured combatant is the flip side of the humanitarian rule that tries to preserve life on the battlefield. It says that even if you're in an unobserved island in the South Pacific you must take that Japanese soldier as as a prisoner. And in unobserved situations, you know if you - if you craft an unreasonable rule, if the rule said you can't - you have to capture but then you have to release, you fear in for the kind of systems maintenance of the law of armed conflict. Then you'd have a great many countries and a great many settings that wouldn't take prisoners. So this right to hold the prisoner is the, if you like the other shoe on the foot that that tries to preserve the lives of combatants on the battlefield. On time, the traditional rule is until the active hostilities are over. And that's a problem with al Qaeda because there's almost nobody who can demobilize them. I think one thing that the government may well want to think through in the next short to medium term is some method for longer-term internments, of reviewing whom the people are at a periodic interval. Almost asking in a kind of mental health way: Is this person still dangerous? What do we know about them? Is it somebody who was just swept up in the excitement of the Taliban or is it somebody who's committed? And that kind of screening has been going on. It hasn't been as visible to the public perhaps as would have been desirable in terms of public relations. I loathe doing what many, in a kind of formal, burden of proof, he said, she said, way because you have to really get to the nub of it, is the person still dangerous? If they're caught with a gun in their hands, it's certainly reasonable to presume initially that they're dangerous. On Padilla's case, it's the added complication that he's a citizen. So he has a right to habeas corpus. To have his case reviewed in federal court. And the issue there is how much you can ask the government to disclose in the middle of a counter-intelligence operation, and with the added exquisite dilemma that you want to get as much intel for folks as you can. No doubt about it.
If Padilla had a buddy who was gonna carry out an attack on Grand Central Station, it'd be awful nice to know about it. You're allowed to interrogate people, both under Geneva and otherwise. And the fact of life is that as soon as you appoint a lawyer, since lawyers operate in a traditional criminal law setting, their very first advice to a client is going to be to hush up, don't say anything, can't help you. It will hurt you criminally; it could hurt you in terms of the length of your internment. Just shut your mouth. So what that means is if you appoint a lawyer for Padilla, for the first 48 hours or three weeks of his internment, he will cease to be available as an intelligence source. The attempted rebuttal to that is, "Well, if he's got some good stuff, he's gonna tell it to you right away." Well, I fear, I mean, that's not true. A gentleman named al-Faruk, who was caught in the region, a non-American citizen. Gave up very important information about plans to attack foreign embassies, American embassies, throughout the southeastern, Asian archipelago in all Indonesia, Philippines, places like that. And he gave it, gave that information only 90 days or more after his initial capture. bin Laden requires his people to stay silent for a significant period of time - and if you set a specific date, you know that - that quickly becomes known and then the person knows they only have to hold out until that date. So it's a real dilemma, we're all reared to think, "the more lawyer the better." "I like lawyers," you know, "Every child should have a lawyer." "Every professor should have a lawyer." But at the same time a lawyer in the setting of a military interview, is going to cut off the intelligence source. And we have very, very few methods of learning about al Qaeda other than capturing people, debriefing them, dumping their date books, dumping their organizers and trying to just work through the scheme of people, one by one. It's easy to say, "Well that's the cost of democracy, we prefer to do it this way." And if al Qaeda was a lesser threat, I'm not sure I'd have the same position. But again where there are innocent lives at stake as victims, where human rights as a commitment enters on both sides of the equation here, we have a right, a human right not to be killed by an al Qaeda bomb in Grand Central Station. That it's not an easy question. And I think it's one that the Second Circuit unhappily dealt with in a very reflexive way. Thinking this is how we do what we do people sometimes joke about the military and the military does what it does, does what it knows how to do. Well judges do what they know how to do. They don't have much occasion to think through these other kinds of situations where you have to balance rights on both sides of the occasion, equation.
Either the argument is the power to declare war and to establish military tribunals is actually congressional or the argument is still that the president as Commander in Chief has been given that power through the declaration of conquests that we were at war. Some people argue whether there was any official declaration that we were at war.
There's been as official a declaration as you're ever going to get in the modern world. People don't declare war anymore, because it's illegal under the UN charter. You declare self-defense. So all you get, whether it's Vietnam or Korea or anything is the authorization for use of force. But Congress very explicitly on September eighteenth authorized the President to use force, deadly force, against any countries, organizations or individuals who he thought were involved in September 11th. It was not simply a declaration of war against the Taliban or against Afghanistan. But anybody - it was - it was an open-ended declaration if you like. So, some people explain the Supreme Court's action back in the 1950s, in this famous steel seizure case, as being part of a concern that Harry Truman was engaging in a police action to defend North Korea without an explicit declaration from the Congress. But here you have an open, textual declaration by the Congress. I think one other area that where courts have to be cautious is it's not simply a matter of construing what Congress intended but worrying about intrusion on what are ultimately Article Two powers of the presidency itself. And there is an account of executive power, Alexander Hamilton's account - very credible account. That is kind of an emergency power which is to hold a fort until Congress can act but still to hold the fort and to repel immediate, unanticipatable emergencies. And Congress has not been quick to act here other than their initial authorization for the use of force and their passage of the PATRIOT Act. But there are I think courts should read statutes in ways that stay away from the Constitutional edge of the world. And where you're potentially constraining what will, in an emergency, be crucial presidential powers. A rule that says you have to passive until Congress tells you in exact detail what and how you can act, doesn't work very well when you have surprise attacks, when you have weapons of mass destruction.
One of the interesting comments that Douglas Kmiec made was how if you look back the Supreme Court has typically been very silent in times of war around these kinds of issues and you're describing in a way, a Congress that has been silent. So is there a danger here not necessarily that the executive branch has overextended its powers and that the other two branches aren't stepping up to the plate? Some critics fear that the Constitutional system of checks and balances is kind of going out of whack. How do you feel?
Well there's a very famous opinion by Justice Robert Jackson in the steel seizure case, it's taught in every constitutional law course, talking about the President's power. And saying that the President's power is at it's apex, at it's highest when Congress approves, at it's lowest when Congress openly disapproves, and in the middle when Congress is indifferent. Three-part test. I always tease my law students and say, it's actually a five-part test. Because you have three kinds of silence. You have Congress's approving silence, disapproving silence and indifferent silence. So the problem often is that Congress just doesn't say much. And who's Congress? There are a lot of Congressmen. You therefore, as a court, if you were reviewing a case, have to discern which kind of silence it is. But here you've had two years of activity, Congress has not proposed any alternative trial system, any alternative system for detention, or internment of combatants.
Talk about executive orders
Well executive orders are published decisions by the President. Sometimes they are classified, but usually they are published. Sometimes they are in the execution of the statute. A statutory delegated power. Statutorily delegated power. Sometimes they're in the execution of the President's own power. They're all over the place. If you look at the Federal Register, it's filled with executive orders, it's what administrative lawyers in Washington D.C. make a living at, you know, worrying about how either an administrative agency or the President himself are going to execute a policy. There are thousands of published orders, regulations sometimes done through notice and comments where you put it out as a draft and solicit comments on it, and then put it in final form. Sometimes done without that. Which are a great part of how we make law. Often Congress just passes statutes at a huge level of generality, huge abstraction - that the Federal Communications Commission should serve the public interest. Well, that doesn't tell you very much about how to allocate frequencies. Ditto for a host of other administrative agencies. So, the fact that something is an executive order or an agency order doesn't either praise it or condemn it. It's a way of filling out detail in areas of law making. As Commander in Chief, the President has to give orders all the time, he tells a new carrier battle group to go into the Taiwan Straits or tells a carrier battle group to go from the Sea of Japan into the Persian Gulf. And some of those are not published because they're part of military operations. But as Commander in Chief with a duty of protecting the U.S., he has to issue orders all the time that effect the deployment of military personnel. In this case, it was the use of an executive order to set up a court system. And that's been a time consuming process, just as it took several years for the United Nations to set up their Yugoslav tribunal and the Rwanda tribunal. You have to worry about rules of procedure, the specification of the substance of the crimes, you have to get a good robust defense function going, making sure you've recruited people who will take their job as defense lawyer seriously. Had, in this case, to recruit an independent appellate panel, which is now chuck full of civilians, there may be some military people on it too but for the first four appointments are civilians who have no need to be praised by the President. Who have had careers and lives and distinguished pasts and will be trusted with reviewing the record of each trial to make sure that no serious errors of law have been committed. And who have independent power, often forgotten, independent power to reverse and remand a conviction.
Given all those things, is it disingenuous of the critics who would point to U.S. criticisms of military tribunals in such places as Peru, Egypt, Nigeria, and then say that the U.S. loses it moral authority if it too starts to use military tribunals? Is that clumping them all together or is there any validity to that fear?
Well I take their concern that there are many militaries around the world that are not liberal, that are not democratic. And therefore you don't want people disappearing into the bowels of the Soviet Gulag or a country that has a poor track record for civil liberties. But I think the importance of having published all the rules on the record. They're all on the web. The rules for defense counsel, for the appellate panel, the elements of the crimes, the rules of procedure, is to show that there is a good way to do this. That there is a way that, I mean not good in the sense that I would much rather be at peace, but that in the exigencies of this times, gives you a credible way to try a case, preserve due process, and yet not expose every piece of intelligence to al Qaeda's perusal. And having that be a transparent set of rules was very important. I worry sometimes that in the jot and tittle kind of gotcha litigation style of American lawyers, "What about this detail? What about that detail? Why not the court of military appeals? Why is it only a former attorney general, a former secretary of transportation, Chief Justice of a state, and a court of common pleas, judge of a state? Why not this other court?" That our foreign critics, our foreign friends misunderstand, I think at times, the gravamen of those criticisms. And they mistake smoke for fire, detail for substance. Rather than looking to the essential fairness of the process. A year and a half ago, must have been March of 2002, we had just finished the rules for the trials themselves.
I wrote a joint op-ed for all the group we called "The Grey Beards" all these collected octogenarians, I was the youngest of them and the most beardless. And I thought we'd, might make sense to do a common statement saying we might change this, we might change that as an individual, but overall with reputations on the line and significant careers on the line, that these octogenarians and others felt this was a fair process. And I drafted it, everybody agreed to it, I sent it around to all the major newspapers and you know what? It wasn't news. Because at that point the trial rules had largely been accepted. And the fact that ex-cabinet members in dog bites man thought that was fair, well of course it was fair. Bill Safire thought it was largely fair, the columnist for the New York Times. But then you get back to sort of a my article 102 can trump your article 98 kind of a tax code form of critique. Which I think can distract people from the essential question - the question that the Supreme Court would've asked in a different age. Is this process essentially fair? It may not look exactly like civilian court; it can't look like the civilian court. That's the whole point of it. But is it in sum and substance, essentially fair. And that'll have to be judged both on the rules themselves, and then on how they're applied. I fear sometimes that this kind of gotcha style of litigation critique can very much distract our allies from that view. I think the Brits, Lord Stein, Lord Goldsmith they assume that there wouldn't be this cacophony if something terrible wasn't happening. And then when people say, "well you know what, there's no real claim anybody at Guantánamo's being treated inhumanely. We're worried about the suicides, but no one's claiming people are being tortured." That kind of falls out of view when you hear a constant barrage of criticism.
Can I read you a criticism? Particularly of Guantánamo. This was an argument that was made in Vanity Fair. The writer identifies what he said was a US Central Command regulation issued in 1995, a very similar thing to the Geneva Convention in that it said, "Instead of allowing America merely to declare a captive unlawful and deny him a hearing," This US Central Command regulation that states, "a person who has committed a belligerent action be treated as an enemy prisoner of war until such a time as his status has been determined by a tribunal." That seems very different than what's going on now.
I don't know by the particular CENCOM command but there is a provision in the third Geneva Convention that says in the case of doubt, that a person should be treated as a POW until a competent tribunal has ruled on the case. It's of curious phrase, it says, "In cases of doubt a person having committed a belligerent act, should be treated as a POW, until a competent tribunal rules upon it." It takes for granted the belligerent act. It's not designed to have a trial, about whether he was really carrying a gun, shooting a gun, or not. It's not a factually granular trial. It's rather, in the commentary, said to deal with cases like people who have lost their I.D. cards that would otherwise identify them as members of the army. That's one example given. The other example given is a deserter. That the tribunal that's mentioned in Article Five is not a civilian court, it's usually too major as an orange crate in the middle of battlefield. And the stated purpose of it is to get people safely back to rear quarters. From the bad ol' days when if you weren't a POW you might be shot summarily as a bandit. The determination that the President made as Commander in Chief, which is the highest level of sobriety that you can wish for, that al Qaeda as an army or al Qaeda as a force does not qualify as lawful combatants is determined of their legal status. And so too for Taliban because that was based upon organization-wide characterizations of the Taliban's failure on it's side to observe the law of armed conflict. So, when people quarrel with the designation of the Taliban or al Qaeda as unlawful combatants, they're not quarreling individual by individual they're quarrel - they just don't agree substantively with George Bush's decision. But Article Five was never meant to say that before you can be held as a combatant you're going to have a probable cause hearing into what you did on the battlefield, it's rather an inquiry into your legal status. And there I think the President made a determination, it's a reasonable determination, Geneva Three of 1949 was not designed for non-state networks such as al Qaeda.
Organizations that have traced human rights report that 64 recently released prisoners were cases of mistaken identity. The Department of Defense reports back in the last Gulf War they held 1200 hearings to asses the status of captured people and two-thirds were determined not to be combatants at all. Is that simply the price of war? If you're in the wrong place at the wrong time and there's enough suspicion to be swept up in that, that sometimes these kinds of things happen? Is it naïve to expect that they wouldn't?
Well, we as citizens we are just deeply familiar with our culture of hearings, and lawyers and adjudication, and rights of challenge and there's a famous phrase from Supreme Court case called Goldberg against Kelly, some kind of hearing. You should be given some kind of hearing before you lose your public assistance benefits. Lawyers have worried about cases where the cost of the hearing is more than the benefit that's at stake. So you make it a very summary hearing for a parking ticket. But still we're used to having our day in court. You don't get your day in court before you get shot on a battlefield. You know, as the adversary comes over the horizon, if you're wearing a German Wehrmacht uniform, you're defense may be that you were cold, you're a shepherd and you borrowed it, but if you look like a German Colonel, you're gonna get shot. So indeed in wartime, on the battlefield, this idea that there's a hearing before Government can ever take any action is simply not true. Now it's - once someone's captured what's the harm of having a hearing. Well, it may be false expectations, again if you're going to say that a person can stay captured only if you can prove beyond a reasonable doubt that they were a combatant and not a shepherd, and the burdens of proof - burden of proof is on the government, only eye witnesses can testify, no hearsay, it may be so impossible a standard that it makes no sense. Who captured Hamdi on the Northern Alliance battle scrimmage? We don't know. At least I don't know. Somebody caught him and ultimately Hamdi admitted to his captures that he had had an AK47 in his hand and had trained with the Taliban in a military training camp. Works for me, I mean that seems to me to be a sufficient predicate of proof that he was indeed a combatant. But, could you prove it in a federal court beyond a reasonable doubt with live witnesses that - who had first-hand observation? Probably not. So you have to, I think, give the devil it's due, in the sense that wartime does not admit of that kind of exactitude. Judge Harvey Wilkinson who wrote the Hamdi opinion for the Fourth Circuit, speaks of the kind of rubble of war. That the person who captured Hamdi may be dead, he may be somewhere else in Afghanistan; you may not ever know who he is. What you do know is what Hamdi said to his captures after he was caught. And you may have to make do with that. So, yes I take the point that you want to prevent error to the extent humanly possible. Modern soldiers have targeting cells in which they have lawyers reviewing target choices. For the very purpose of preventing the kind of unhappy human damage that war can cause, when you shoot the wrong person, or shoot the wrong house. But there's a limit beyond which you can't push that. And I think again in the attempt to marry up these two worlds of federal criminal trials and the habits we've learned there with the anarchy of the battlefield, that's gonna be a difficult marriage.
Some general questions about the PATRIOT Act. One place there has been a lot of rhetoric is that there are sections of the act that seem to inspire a great deal of fear in terms of civil rights groups. Namely section 215. It's the notion that your library records, among other records, are going to be spied on - that the standards are being lowered. Is that the case?
Well let me see what, by the way, one thing about the 64 people released, to go back on the other question. Which is that there's been no public announcement as to who was released or why. It could be that some people were released because their own government promised to monitor them. There's been no Scottish - not proven certificates issued. So I wouldn't take as gospel anybody's claim that any certain number of people have been found to be uninvolved. You have to be aware, obviously of the kinds of perverse incentives that people could have in handing over al Qaeda suspects or Taliban suspects. If you were using a bounty system that has some cause for anxiety. But I think the incentives to scrutinize all point in the right direction. It makes no sense - there's nothing to be gained by holding people who are uninvolved. And therefore the kind of screening teams that have operated before people got to Guantánamo, when they arrive and at regular intervals thereafter, try to figure out who they are, what they were doing, are the best way of making sure that people who were uninvolved would not be held for any length of time. On the PATRIOT Act, one of the ironies of the PATRIOT Act is that there was an old Department of Justice wish list largely left over from Bill Clinton and Janet Reno and Jaime Gorelick, a wonderful Deputy Attorney General, of things that over the years prosecutors felt they needed to be effective in investigations, but couldn't get. I mean, omnibus criminal justice statutes don't pass every day of the week. So, much of the content of the PATRIOT Act is stuff that people felt they needed before 9-11 to adapt to technology. For example, throw away telephones. If I have drug dealer who using a cardboard phone, he makes a call; he throws the phone away; he gets another ten-dollar phone. Does it really make a difference to privacy if I tap him as opposed to his telephone? Isn't the invasion of privacy the same? So that ongoing process of having to adapt principles of privacy to new technologies is one that's been felt before and re-felt again. And 80 percent of the PATRIOT Act is just that.
The other part of the PATRIOT Act, I think, is the attempt to make intelligence investigations more efficient. To allow folks who are looking at things on the intel side of the house, to put together the mosaic, the circumstantial evidence, the strange pattern of practice that let's you know what a network is doing. And get records in real time. With all the privacy legislation of the '60s and '70s, basically a Federal Bureau of Investigation agent can't function without a prosecutor at his elbow to give him grand jury subpoenas. And you don't have to go to the grand jury to get it voted every time, but you have to write it out in the name of the grand jury. But that means you have to do things on the criminal side of the house. What happens if you want to put together an intelligence investigation to see what kind of pattern you have of al Qaeda suspects entering the country, going to flight school, renting lockers, downloading material about wiring diagrams, shouldn't an intelligence investigation be able to do that too in real time. And that has been the source of most of the sort of the administrative subpoenas, administrative summons that have been questioned in the PATRIOT Act. I think here, people take litigating positions. If I was a librarian - I love books, I collect books; I spend the bulk of my disposable income on books. Other than the stuff I buy my kid. But libraries - libraries offer lots of services now days. They're a little bit like Kmart. They have computer terminals where you can download things from the Internet or send e-mails. So if you had an al Qaeda member who entered the country, moved to Florida, and was using, not just the Kinkos in his county, but the county library as a method to communicate with his fellows, wouldn't you want to be able to get information from that computer? Why don't you just bring -? For the record before the Congress that in fact the library - the power to look at library records had never been used. And there's no winning for losing that was then harnessed as proof he didn't need the power in the first place. Well, if you have an al Qaeda guy who went to the library to check out a book on how to build a bomb or to use the library Internet to communicate with a fellow, you'd want to be able to access that. And yes you do it cautiously anybody who's at all familiar with the kind of ethos of law enforcement knows that the intrusiveness of the technique should vary with the seriousness of the occasion. But if in real time you felt the need in hot pursuit to figure out who he was communicating with or whether he checked out a book on fissile material, you'd want to have that power. And there is I think a kind of line in the sand litigating position that groups like the library association take up that you may never, ever under any circumstance enter a library to gather information. And that's I think, that's an excessive absolutism that doesn't take account of how adaptive networks can be at using the resources that are at hand.
One of the things that surprised me in the criticism of the PATRIOT Act is in terms of the '90s. It's my understanding that this has been used before in the Son of Sam case and the Unibomber case where access to library records has been granted. Why do you think so much opposition has mobilized around this act and not the 1996 Terrorism Act that set many of these things in process? This doesn't happen in a vacuum, this is a continuation of things and yet you didn't see that.
No, one of my concerns is somehow adapting to a very practical problem which is al Qaeda, has become mapped onto some great cultural war of he said, she said, Republican, Democrat, liberal, conservative, liberal, right wing, whatever you want to call the opposition sides. Libraries have been amenable to grand jury subpoenas since I was a prosecutor. If you think that there's material that's pertinent in a library's records, there's no privilege that says that a library is absolutely like a lawyer's office and even a lawyer's office, if you think that there is the office has been used as an instrumentality of a crime, you can get a search warrant for a lawyer's office. You can get a grand jury subpoena for a lawyer's office. Everything's relative. If you set up free zones, then it's just a fact of human nature that people try to use those free zones, those safe zones for purposes that are illicit as well as licit. So, no the irony to me is that twenty years ago you could get a grand jury subpoena for a library. You'd have to have a prosecutor write it out, if he were feeling dainty you might have the grand jury vote it specifically, but most grand jury subpoenas are issued without the grand jury taking a vote. There have been administrative guidelines from time to time in the Department of Justice to try to make sure that the more intrusive techniques are not overused. When do you have to go to your supervisor to get a sign-off? When does an agent have to talk to a prosecutor? But there is no free zone because other - if there were the mob or a drug dealer or in this case a terrorist, might very well find that a convenient place to use for organizational purposes. Now in a trial, traditionally a judge would have been loathe to admit into evidence a book, because you want to let your teenager to read Jerry Rubin's Steal This Book, or you want to let your kid read crazy stuff. But if you have a book in the context of a pattern of facts where somebody is clearly talking in code about trying to put a bomb in Grand Central Station, then the fact that they both bought the gelignite and checked out a book on a wiring diagram are both pertinent, and a judge would let it in. And it would be probative.
To paraphrase an ACLU argument, they wouldn't disagree that some of these unnecessary barriers needed to be eradicated but what they would maybe argue is the standards of proof have been lowered too much to a place where they're not comfortable? FISA, for example.
The standard of proof hasn't been changed. What the Foreign Intelligence Surveillance Act court has required in the past is that you be surveilling a foreign government office. Doesn't require much more than that. Now you can also surveil a foreign terrorist network. You still can't surveil a lone wolf. One of the issues, both of foreign government surveillance in the old days and foreign terrorist surveillance now is whether an American person might be part of that network. If he's the direct object of the overhear. And you'd have to show probable cause that he was. But the standard is still that either the overhear would have to be incidental, accidental, unanticipated, or if the person was the direct object of the surveillance, that you show by probable cause that he's an agent of a foreign power or agent of a foreign terrorist network.
You mentioned that the PATRIOT Act was kind of a wish list of previous administrations. Some critics raise concerns that the Patriot Act might be used not just against terrorist cases, but also in areas that had nothing to do with terrorism.
It is true that some of the kinds of transparency you want to shut down terrorism doesn't suit other people's convenience either. I mean, you want financial transparency. To know where money is really flowing, and to try to prevent money from going from a charity, to funding Hamaas or Hisballa or al Qaeda. And that same kind of transparency can make it harder to be a drug dealer, can make it harder to cheat on your taxes. So it's true there's kind of a natural resistance, I think, to some degrees of intrusion, for fear that the kind of normal bad habits we like or some of us like will be impeded. But that's kind of the cost of doing business. If you want to shut down al Qaeda's money flow then you have to have a kind of accountability that will have some impact on other illegal activities.
In terms of the Constitution, how is the PATRIOT Act different than other wartime acts throughout history? Is it better? Is it worse? Has it even upset the Constitutional balance, as some people would suggest?
The PATRIOT Act is largely just a set of techniques to allow both law enforcement and intelligence investigations to work a bit more efficiently. The most illiberal, if you like, theoretical power under the PATRIOT Act hasn't been used. And that was Congress' approval of a, in theoretical possibility, seven days of detention before somebody was charged with a crime in immigration violation. But in fact that was not used in post-9/11. So mostly it's for gathering information, it's for the, there's a tradeoff I think in kinds of responses you can have to al Qaeda. You can do things that are more intrusive on privacy but then more discriminating. Where you're not inconveniencing tens of thousands of people. And there's this kind of a contest of incommensurable goods in fighting al Qaeda. You want perfect privacy, you don't want racial profiling, you want minimum intrusion in inconvenience to people's lives. And there's some tradeoffs between them. I think the more you know about al Qaeda, the more you can hone in with a kind of a laser light to learn everything there is to know about al Qaeda and their associations and their habits and their practices, the more you can avoid the kind of blunderbuss or actions that might look like racial profiling. Or having to examine every immigrant from a country where al Qaeda recruits for example. And I think therefore people need to be a little bit self-conscious that by giving up privacy to some degree, they may make it easier for the government to avoid the kind of nationally invidious, ethnically invidious distinctions that one would not want the government to have to make. And that the key to fighting al Qaeda, I think, is information. And a lot of it is very old-fashioned police work. In the sense of having to get a guy, figuring out who he knows, what they were doing, putting together ephemeral patterns of things that don't make sense. It's almost like the debate about Darpo but without the proper names. Try to figure out, what does it mean if somebody has both taken flight school training and been to Afghanistan an uncanny number of times recently, and has been seen near a methane suppliers warehouse, and has been associating with somebody who was the roommate of somebody who was in al Qaeda? It's all circumstantial, it probably does not amount to a crime at that point, it's not proof of a crime. But it's very good reason to be interested in the person. And yet it's putting together those kinds of wispy, gossamer threads that let's you know what al Qaeda's thinking, what they're planning, who might be involved. But it takes a, I suppose a certain willingness to have the government look at sources of information that it might ordinarily not be interested in.
Is there anything that I missed, or anything that you would like to add?
I suppose my major concern is that if we exaggerate the burdens on civil liberties that we can cause one of two things. One is that we can lose our ability to discriminate between mild burdens and severe burdens. You can lose your, you become tone deaf. If everything's an outrage, than nothing's an outrage. And secondly that you can, it's possible to tie down the government sufficiently that they can't do their job. It's not just long in the tooth prosecutors who take the phrase burden of proof as a very heavy burden. But it is ex-prosecutors I think, who particularly well know that it's, you can know something to be true and not be able to prove it in a courtroom. That the government often has been forced to wait in the past. And where deterrents as an idea has underlined both criminal law and military strategy that you, it was sufficient if you reacted after the fact. If you had second strike capacity. Punish them afterwards. And your now asking government to do something entirely different. Which is to anticipate in some kind of omniscience, no intrusion into privacy but perfect omniscience. That it's a very, very difficult set of tasks. And I guess my other view of life is that you see running in parallel the 9/11. And other critics will say, "if everything had worked perfectly before 9/11 with perfect apprehension, perfect translation in real time, perfect comprehension of what things meant, all the dots connected, could we have stopped it?" My rule of government is it's never going to work perfectly, it's going work at 80% efficiency if you're doing well. 65% efficiency on a bad day. And you'd better design a system then that can do what needs to be done with that in mind. So if you make it too hard for agencies to function, too hard to gather information, there are too many hoops to jump through, things will not be put together in real time. When I give discussions, when I do debates in public I sometimes joke by myself, "I'm a recovering guidelines writer." One of my first jobs right out of law school was to work with the FBI on investigative guidelines. To try to prevent civil liberties abuses. To limit how they used informants, limit how they used under cover operations. And then I became a prosecutor and went to New York City. I got a terrific snitch in Chinatown who was going to give up a great case on how one of the youth gangs was intimidating all the local merchants in Chinatown. By the time I ran his name up through the undercover operations review guidelines committee, had the paper work bounced initially for failure to corroborate something which, my own guidelines, and then had submitted it again, you know what? The informant changed his mind; he reconciled with the boss who hadn't promoted him or the guy who stole his girlfriend. And in a perfect frictionless world, yes you could do all these things at no cost. In real life a lot of your effectiveness in investigations, in preventing things is serendipity. Something clicks, someone walks in, someone's willing to cooperate for that period of time, but not forever, 'cause they're human beings with their own motivations. So I think there has to be a realization that the more paperwork tax you put on things, you certainly slow the machine down. And you may very well prevent things from being seized upon at all. So I like to joke that, "it was not 'til I had to do it myself as an investigator in the field that I understood that perhaps the simplicity in guidelines, holding people accountable for their decisions but not always micromanaging every step of their activity is a necessary delegation that you have to be willing to engage in." And certainly with al Qaeda they are not like any group we've ever tried to investigate before, it's not the mob, the mob doesn't hurt judges, the mob doesn't blow up portions of cities. It's a much more dangerous group; it's a much better protected group. It's in a foreign language with translation problems. It's on-shore, offshore. So your asking government to do something it's never had to do before, and in that sense, I think, trying to run it as a potato sack race with one leg and two arms tied behind your back is not going to be effective in meeting what, to me, is a very real threat.