Liveblogging Session 4: “The Ethics and Law of Domestic Counter-terrorism: The Challenges of the Next Ten Years”

Keith Gerver
Saturday, September 17, 2011, 11:27 AM
Session 4 begins with a brief introduction of the panelists from Prof. Dick Fallon, the panel’s moderator.  Panelists include Prof.  Phil Heymman, Ben Wizner, director of litigation of the ACLU’s National Security Project, Prof. Gerald Neuman, and Prof. Trevor Morrison. The first panelist to comment is Heymann. He says he’s afraid he’s going to sound like Chicken Little–that the sky is falling on American civil liberties.  But he thinks things are moving in a way that are of concern.  He begins by noting what the U.S.

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Session 4 begins with a brief introduction of the panelists from Prof. Dick Fallon, the panel’s moderator.  Panelists include Prof.  Phil Heymman, Ben Wizner, director of litigation of the ACLU’s National Security Project, Prof. Gerald Neuman, and Prof. Trevor Morrison. The first panelist to comment is Heymann. He says he’s afraid he’s going to sound like Chicken Little–that the sky is falling on American civil liberties.  But he thinks things are moving in a way that are of concern.  He begins by noting what the U.S. government could do to a citizen in August 2001–search and seizure, detention through arrest or in preparation for trial, and it could try you for something you had done or had conspired to do. All these things are “event-triggered.”  Heymann says that there must have been a reasonable basis for taking these steps–suspicion of a crime.  He notes that since the Vietnam War, the police in the United States were broadly forbidden from intelligence gathering. Now it’s widely commended.  He says a police chief could not use the word intelligence in August 2001.  In addition, they could not demand records without a grand jury subpoena. These things were largely constitutional and did not need the approval of the President.  In addition, intelligence and military were kept far away from domestic law enforcement.  But over the last 10 years, the sky isn’t falling, but things are shifting.  We’ve come to accept the exercise of presidential power to detain and kill Americans without trial.  Heymann says that this is pretty stunning.  He further notes that we’ve come to accept, even though the President has never claimed the power, even in writing, the trying of American citizens before military commissions. We’ve come to accept that this is a war and thus powers of war are available to the President.  Heymann adds that we’ve come to accept the shift towards a surveillance state.  Americans, Heymman  says, have had two protections of privacy–against electronic surveillance and by being in a place in which normal people cannot hear and cannot see what you’re doing.  You had privacy in those locations to say what you wanted to another person. Since 9/11,  however, we’ve poured money into surveillance and have made those public locations “open game.” Heymann says that broad intelligence sharing is an “unqualified” good thing.  He says if the CIA is coaching the NYPD on how to conduct surveillance on the Muslim communities in New York–and we know that they are–then that’s not a good thing. Heymann says our liberties remain very considerable, but the ground is shifting because of fear outweighs our concerns about living in a tolerably surveillance-free society.  He says he’d like to discuss what he’d like to do, but will hand things back to Fallon. Fallon says that Heymann  can  go ahead and tell us a few sentences about we ought to do.  Heymann says the easy step is to be sure about surveillance,  which be definition must be secret–you cannot surveil  someone if they know you’re surveilling them. He adds that he would not permit the targeting of American citizens with force without clear Congressional authorization.  He says we must come down on excessive fears and above all, we must be rational about our fears. Fallon asks the other panelists for any comments regarding Heymman’s comments.  Morrison says he’s not sure.  He says that though Heymman may not have intended this, but he sensed a jump from the privacy enjoyed by Madison to 9/11.  He thinks that this might be more due to technology. He’s not sure if legal powers have expanded in ways we thought categorically off the table pre 9/11, or rather the government has just exercised powers that it may not have had much opportunity to exercise prior to 9/11. Next, Ben Wizner from the ACLU says that we must have fearless conversations over the issues brought up by this Conference.  He believes we’re off to a great start over the last two days.  He says we’re well on into the season of 9/11 Ten-Year anniversary events. He believes we must look back before looking forward.  He says that he’s surprised by two things: 1) terrorists have not succeeded in striking again; 2) our political leaders have behaved as if they have.  Wizner says we have let the terrorist define the discussion of our political discourse.  We do not contextualize the threat; core values are set aside by concerns over national security.  Though Wizner says terrorism will not be eliminated,  it should not be equated to times in our history in which the United States faced existential threats. Wizner believes that leaders have manipulated those fears. He finds it hard to believe that political leaders believe the things they say. He says that if leaders hold these beliefs, they’re fools or cowards.  Those leaders that proclaim that terrorists pose a threat to our way of life or that we had no choice but to abandon core principals see themselves as warriors.  Those, however, that demand that we stand by core principals have been dismissed as naive.  Wizner believes that this dynamic was driven by a contrived political debate over whether terrorism should be fought by the military or through law enforcement.  He says that the challenge must be met by both military and law enforcement resources.  The question is not whether to employ a certain response,  but where to draw the line. Wizner says that we have let a superficial war on terror push ourselves in a militaristic view.  He notes an article by Packer in the New Yorker challenging us to reexamine our views over 9/11. Wizner says that the comparison between this generation and the WWII generation is apt, but what has emerged post 9/11? There has been no Nuremburg, no Geneva Conventions. Wizner notes a comment from Juliette Kayyem from yesterday about how we can ratchet down the authorities given to the government since 9/11.  He says the pendulum only swings in one direction. Wizner next discusses a speech by Justice Brennan soon after the end of the Cold War about how poorly civil liberties fare in the “crucible of danger.”  Wizner says that the unique danger of this “war” is that the end is a distant abstraction; we knew how prior conflicts would end.  We do not know now.  He says we heard from Brennan that al Qaida is on the ropes; instead of ratcheting down, we have debates in Congress about how we should give the President more, rather than less power. Fallon has a comment on how our fears have become pathological.  He comments that it would have been surprising if it had become anything but pathological. Wizner says that efforts such as this Conference should make the discussion less toxic.  He notes that issues that were not controversial during a Republican presidency have become flash points under this President (e.g., prosecution of the shoe bomber in comparison with the underwear bomber). He sees this as a function of how hyper-partisan our system has become, even in the national security field. But does the record speak  for itself, asks Fallon. Has the lack of a major attack been a vindication?  Wizner says it’s hard to tell,  given that most information is classified.  But he says that he thinks it’s really unanswerable.  He says we need to find a way to have a discussion of this that gets out of the narrow band of discussion. Fallon turns to Prof. Morrison.  He notes that Morrison has some insight into the politics of decision-making, given his recent stint in the White House.  Morrison says a lot of the description is quite right. He offers one thought–though we cannot know for sure what if any imminent threats have been disrupted by the policies, he’s not sure it’s as paradoxical  as it sounds. He says there is “one-wayness” to it, but he thinks this might be in the nature of responding to threats.  But what are the conditions of ratcheting back? He thinks this is a good question. Next,  Prof. Neuman.  He begins by noting that he will be depressing on the subject of international law, rather than on domestic liberties, as the two previous speakers have been. He notes that he is not speaking on behalf of the United Nations Human Rights Committee. He says he wants to talk about the challenges of domestic counter-terrorism from an international human rights perspective, which overlaps, but does not always coincide with U.S. constitutional perspectives.  He notes that the United States has a duty to protect its citizens, its residents, and visitor.  But it must do so without trampling on the rights of these people. Neuman notes that a symbolic low point of the past 10 years was the case of Jose Padilla.  He goes on to discuss the details of Bush administration’s treatment of Padilla.  He notes that Padilla’s case was mooted and the dispute over his treatment was ultimately never resolved. He next discusses a few cases that have placed limits on the government,  but they have been far too few.  He says there have been  improvements,  but mostly due to voluntary restraint. He says too few safeguards have been put into place–he fears that those improvements could be easily swept away if there is another attack or if the party in power changes. Neuman notes that Administration’s position to “look forward, not backward” was expedient and would have added to the current poisonous political environment.  But he says alternative methods of dealing with crimes under the Bush administration have not been tried much either. He next discusses how the DC Circuit has dragged its feet post-Boumediene and how Congress has obstructed Obama’s efforts to close Guantanamo.  He notes the “grotesquely overbroad” laws that the previous administration and Congress enacted. He says that the United States has not employed its overbroad laws as broadly as some other States; however, he believes this is mostly out of voluntary restraint.  He notes they’re popular to pass, but unpopular to retract. Fallon says that the hardest question for some academics is what to do at the practical level.  He believes that Neuman opens up to this when he discussed American popular culture and its views on coercive interrogation (i.e., the television show 24).  Fallon says that he has some sense that a political leader who would push against this would be met with rebuke, much like Obama was rebuked when he tried to close Guantanamo.  What kind of practical advice does Neuman have for political leaders to make acceptable what international law and norms demand? Neuman  says the U.S. has a legal obligation to prosecute those who have tortured.  He knows this is not politically palatable.  He says Truth Commissions have been used in other societies to deal with human rights abuses; he notes that there were some proposals to do something like this in Congress.  He says there has been some investigation internally in the DOJ that have not been made public; he says there was an investigation of the behavior of the OLC, but the report was rewritten at a high level to suppress recommendations of bar discipline.  And there were a variety of proposals that would not have been politically popular.  He knows that it would have taken great political courage.  But that does not deter him from laying out the alternatives. Heymann responds to Neuman’s comments.  He says that the reality of our fears must be addressed first.  We must find a mechanism to assess the reality of our fears and to encourage willingness to take risks.  He does not think that international human rights will stand up to the fear of the American people.  Dealing with the fear is a difficult job. Next, Fallon hands the podium to Morrison.  He says his remarks will sound like they’re coming from the Executive Branch, but he’s been out of the Obama administration for some time now. He starts with the premise that counter-terrorism policies will be pragmatic; they will embrace a range of options within legal limits.  In the area of detention and prosecution, the Administration has expressed a desire to have options (Article III, military commissions, continued detention).  He notes that he believes Brennan’s speech last night is the best expression of this view of pragmatism and flexibility. Morrison says Wizner is right that the dichotomy is false.  But the “doom and gloom” is that the American public thinks in extremes in this area. He sees this on both sides of the political spectrum.   He sees both positions as equally inaccurate, equally irresponsible,  and contributing to the poisonous environment.  Morrison notes,  however, that the middle ground is susceptible to slippery slope arguments.  In short, can the center hold? He says that there are issues of inter-branch trust. He believes that there some in Congress who approach these issues with seriousness, but there is mutual lack of trust between the Executive and Congress. Morrison says the Executive has not wanted to engage Congress on matters that could be topics of legislation out of fear that the legislation will be really bad in some way.  He notes on the legislative side, there is a fear that if the Executive is given discretion or allowed to keep it,  it will be exercised in a “bad way.”  So,  Morrison says, we get discretion-limiting legislation, such as that found in the Defense Authorization bill. He says the current language says something like “mandating military custody” and the use of military courts. It would potentially expand detention authority beyond what is probably necessary and perhaps what is defensible in the courts.  Morrison says this is not just bad policy, but could be legally risky.  Such legislation might encourage the Supreme Court to get involved once again.  Morrison notes the last few paragraphs of Kennedy’s opinion that he says reflected a lack of faith on the part of the courts in the political branches to act responsibly.   He thinks that if the Administration is given more discretion, it probably will end up with less if the issue comes before the Supreme Court. Morrison says the Administration should be giving more speeches like Brennan gave.  It gives the Administration the opportunity to pull together what it’s doing and publicly articulate its actions and its legal justifications.  Second, he says there are internal constraints within the Executive Branch,  such as the decision to continue periodic reviews of Guantanamo detainees.  The Executive should commit itself to using the internal legal advisory checks; on that note, Morrison says that there have been  reports that legal checks within the Executive have been a joke. Morrison says this is incorrect, but it could be possible in the future.  The Executive must avoid this. Fallon says there has been a sentiment that what is needed a more sensible political climate to address these various issues. Neuman responds to Heymann; Neuman says that he was not saying that American politicians need to implement international human rights qua international human rights; rather,  it can be done by tying them into American values.  He says that the “active defense of the previous administration” will have to end at some point in the future if we want to move forward in this area. Heymann says that, factually, we are not using the law of war against anyone in the United States. In general, he says the biggest division is between our activities abroad and our activities at home.  He notes that politically,  we guarantee that we only use law enforcement at home and use war powers abroad. Fallon suggests that Heymann had intimated otherwise in his presentation.  He sensed Heymman fearing an extension of the war model into the domestic system.  Heymann says that people have argued for it, but it hasn’t gone that far yet.  There is no objection to using the law of war against aliens abroad.  Fallon says that this might be area of consensus among politicians. Fallon opens up the panel to audience questions.  The first question cites David Cole’s recent article in the New York Review of Books and asks if the panel share his views.  He also asks what, if any parts of the PATRIOT Act should be struck. Wizner suggests that Cole goes on to talk about how the courts have abdicated their role over many different issues.  But Cole says the courts have shown some resiliency, namely in the “Magna Carta” cases.  Wizner says he’d like to comment on a statement from Blum yesterday–an overreaction to threat and an over-correction to response. He says he would put himself into the “glass half empty camp” on this issue. The next question is from a local resident over the issue of how we ratchet down.  He asks how do we keep from furthering ratcheting up after the next event? Morrison says that one must go policy by policy if we want to talk about change.  He says there is continued rethinking over the effectiveness of policies–things are not fixed.  In addition, Morrison quibbles a bit with the premise–he’s not sure he’d want the government to think about it will ratchet back, rather how it should respond. He does not want people of good faith to “do less” to protect national security. Neuman says he only has one practical suggestion–giving Guantanamo back to Cuba. It’s used solely for bad purposes. It would help us avoid temptations. Wizner says that Cuba would probably want us to clear out the current occupants.  He adds that there is an almost a consensus over how to guard against “something like that” returning. Wizner notes that there is a real danger of not enforcing the law against anyone. He think it’s dangerous that courts have not ruled on the legality of the Bush administration’s torture practices. Heymnan says we should be teaching people now how to distinguish between small attacks and large attacks.  He says it’s too easy to accomplish small attacks and worries about the country overreacting. The next question is from Sanford Levinson.  He is curious about the views of Morrison on a string of Warren Court decisions upholding the legality of a form of secret police.  He says he also takes deep umbrage on the suggestion about “extremists on both sides.”  Levinson suggests that Yoo would have been “just another law professor” if he had not been an administration official.  The ACLU has had a lack of success in getting people into government.  In addition, he does not believe that American politics is poisonous because someone put poison into the supply,  but rather that one party has an incentive to demagogue.  He notes that the desire to be non-partisan leads to euphemisms. Fallon asks Morrison to respond. Morrison says his claim is that extreme arguments have in fact posed great difficulties for this Administration’s attempts to chart a middle course.  He said there were attempts to work with Congress that didn’t happen not because of Republican opposition,  but because some Democrats thought that the “way left” base would not approve.  He says that Yoo was indeed in a position to act on his views, whereas his equivalent on the other end has not.  Morrison simply believes that a pragmatic middle ground is hard to implement in policy. The next questioner asks what the best argument is for why an ordinary citizen should care about accountability? Neuman says that there is an argument of self-interest.  In short, you could one day be a victim of these laws.  A broader self-interest argument would be to say that the safety of the country is affected by the way it is viewed externally; the country should be viewed as opposing, rather than supporting these policies.  The argument of altruism is that your neighbor might be victims of these policies.  That would depend on how much the ordinary citizen cares about his neighbor. Gabby Blum poses the next question.  She points to airport security as an example of continued reaction to the last threat.  She brings up a conversation raised in last year’s NSJ symposium on detention; the Left will not discuss preventive detention.  She notes that Israel  has preventive detention; you need periodic judicial review and you must present new evidence.  Here, however, we have a situation like that of Ghailani.  She asks if it is the Left side that has caused the stretching of domestic law since it has refused to engage in a discussion over the use of the law of war. Wizner says this is a fair and legitimate question.  He says the question is what is the greater risk to liberty–is it to hold the line against expansion of the criminal laws or to allow the seeping in of the preventive detention model?  On the other side, there is the argument to expand law of war detention to cover things like material support.  Some, like Cole, believe the greater danger is distorting the criminal justice system.  To Wizner,  the greater danger is giving prosecutorial authorities the choice between two systems–one in which they must prove beyond a reasonable doubt or one that has been a rubber stamp (at least until recently). At this point, Fallon ends the panel discussion.  The conference will continue at 2 PM with a panel discussion on the Ethics and Law of International Counterterrorism with Gabriella Blum, Kenneth Anderson, Sarah Cleveland, Stephen Carter,  and John Rizzo.

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