Commentary

The Moral Equivalent of Law >(continued)

By Deborah Pearlstein
Director, US Law and Security Program,
Human Rights First
...continued

Framing the Debate

Understanding the claim the President has put before today's Supreme Court begins well outside the courtroom. Following the September 11 attacks, politicians, reporters and pundits moved with impressive harmony to embrace two principles. The first was that the attacks put our nation squarely in a "time of war," with all of the historical memory wartime carries with it. Second, the security threat terrorism now posed was unprecedented, and made our most important challenge as a democracy to assess - to reassess - the balance between our interest in liberty and our need for security.

The war frame came quickly. As President Bush explained to the nation just days after the attacks: "[E]nemies of freedom committed an act of war against our country." The President was not alone in embracing the rhetoric of war. The day after he witnessed the collapse of the South Tower in Manhattan, former U.S. Senator George Mitchell told the New York Times that the only comparable experience was "war itself," adding, "which this is." Following the initial shock and trauma of the attacks, the use of the term persisted - without deepening in nuance. Just last summer Judge Richard Posner remarked: "Since September 11, 2001, the United States has been at war. It is a war unlike our previous wars, but it is a war nonetheless."

The assertion of war carried with it a set of historical precedents reminding us how we had confronted wartime in the past: Lincoln's suspension of habeas corpus during the Civil War, Roosevelt's internment of U.S. citizens of Japanese descent during World War II, Truman's effort to seize and operate privately owned steel mills during the Korean War. With these precedents came a set of assumptions about what we would see happen this time. It was a historical rule: war places law "under pressure."

One of the few statements about the attacks that did not embrace the rhetoric of war was the joint resolution of Congress itself. Following the attacks on Pearl Harbor, Congress had issued a one-paragraph joint resolution finding that the government of Japan had "committed unprovoked acts of war against the Government and the people of the United States of America," and thereby authorized the President to "employ the entire naval and military forces of the United States and the resources of the Government . . . and, to bring the conflict to a successful termination, all of the resources of the country." This time, Congress was more circumspect. Avoiding entirely the word "war," Congress found that America had been subject to "acts of treacherous violence," and accordingly, the President was authorized "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11."

But the language of the joint resolution did little to undercut the popular perception that the "war on terror" was as much a "war" as any in our history. This perception was reinforced when Congress actively embraced the second post-September 11 principle: the attacks demanded a reassessment of the appropriate balance between liberty and security. Thus, in embracing the PATRIOT Act, congressional member upon member stood to explain: "Increased safety and security will require sacrifices for the American public. Airline passengers are subjected to more intrusive questioning. Aliens suspected of terrorism will be detained for longer periods of time." Less than a week after the attacks, before any assessment of cause or fault, House Minority Leader Richard Gephardt agreed: "[W]e're not going to have all the openness and freedom we have had." In this vision was the more or less explicit view that liberty and security were inversely related. Too much of a free society had made us less secure. And a less free society would be a more secure one. Senate Minority Leader Trent Lott justified a starker view: "When you're at war," he said, "civil liberties are treated differently." Even those who sought to protect traditional liberties acknowledged that security was likely to trump civil rights. As legal scholar Sanford Levinson wrote, "[i]t is difficult to read our constitutional history . . . without believing that the Constitution is often reduced at best to a whisper during times of war."

To be sure, some of these statements were meant to describe what had happened before in our history, not to urge that it happen again. But they all embraced the war and balance frames, and they all assumed the law would bend.

The administration locked on to these frames with renewed clarity and vigor beginning with the President's February 2004 state of the union address. On one side, according to the President, were those who questioned whether "America is really in a war at all," and argued that terrorists should be treated as criminals, not as enemy soldiers. On the other side was a unified administration, which recognized that the terrorists had declared war on the United States, and which knew that "after the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers." Secretary of Defense Rumsfeld put it even more plainly in his follow-on speech to the Miami Chamber of Commerce: "America is a nation at war. It is a war we did not ask for, but it's a war that we must fight. . . . Detaining enemy combatants is a part of that war."

Weeks later, the President's chief lawyer, White House Counsel Alberto Gonzales asserted the same view as a matter of law. Speaking to the American Bar Association's Standing Committee on Law and National Security, Gonzales explained that while "a few people" might be uncomfortable with "the balance struck by this Administration between protecting our country and preserving our freedoms," President Bush was responding to an ongoing threat just like other Presidents during times of war. Because we were at war, Gonzales explained, the balancing process was up to the executive as "a matter of prudence and policy" - not one required by law. There was war, on the one hand, and law, on the other. As long as we understood we were fighting the one, we need not trouble ourselves about the other.

A New War Order

Both the idea that the United States is at war (a broader war than that being waged in Afghanistan and Iraq), and the idea that democracies must balance liberty against security, of course have elements of truth. On the war front, Al Qaeda demonstrated on September 11 that it possessed the capability and desire to cause destruction and loss of life on scale beyond what most non-military forces had previously accomplished. Its goals and methods were transnational in scope. And its longevity and quasi-political ambitions - at least to challenge American power if not overthrow American government - reflected a desire to engage the United States in an ongoing conflict, not simply a one-time assault.

But the war and balance metaphors so widely embraced these past few years are also fundamentally flawed, in ways that matter enormously for the legal questions now before the Supreme Court. While Al Qaeda plainly possessed the wherewithal to inflict horrific damage on our civilian population - on a larger scale and with a greater purpose of destruction - few believe that terrorists pose as fundamental threat to the existence of the United States that many believed was posed by Nazi Germany early in World War II, or even by the Soviet Union throughout the Cold War. Unlike our past wartime enemies, terrorist organizations like Al Qaeda have no sovereign identity. No regular army. And no apparent wish ever to see the conflict end. In this sense, there is little way to distinguish this "war" from any uneasy peace.

The focus on balance post-September 11 has likewise misled. Part of the problem is that balancing implies a zero-sum game. To be more secure, the balance tells us, we should expect to be less free. But while it is sometimes true that the loss of a particular liberty may improve some aspect of security, it does not follow that less liberty always means more security. On the contrary, some of the measures that have had the greatest impact on civil liberties in the United States since September 11 appear to have done little or nothing to make us more secure. The administration called in 80,000 some Arab and Muslim non-citizens to submit to registration and questioning at immigration offices across the country since the attacks - expending enormous resources and deeply alienating the immigrant communities whose cooperation in intelligence gathering may be needed most. But none of these individuals has ever been charged with a terrorism-related offense. Similarly, the balance-focused fury from both liberty and security advocates surrounding the PATRIOT Act largely misses the critical security point that the PATRIOT Act does nothing to address one of the key findings so far about our failures to avert the September 11 attacks. The problem, we are now learning, was not too little information (a problem the PATRIOT Act is mostly designed to address), our problem was failing to understand, analyze, and disseminate the information we had. Compare these measures with widespread calls for more attention to tracking and surveillance of the large shipping containers that arrive in major U.S. ports by the millions each year. We still have not adequately invested in measures for protecting our seaports. Yet this is a measure identified by bipartisan experts as critical to improving security, with no apparent consequences for civil liberties.

There is also a sense in which this preoccupation with how to balance liberty and security assumes that this is a novel question, or even the right question to ask. But the need to balance liberty and security in the United States long predated the September 11 attacks. Indeed, the initial - and fundamental - balance was struck more than 225 years ago, at a time when the United States as a nation was much less stable, less secure, and when we had just weathered a war testing our very existence. And as the U.S. Supreme Court has explained in virtually every Fourth Amendment search case for decades: "The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." The post-September 11 focus on balance rested not on some new challenge to democracy, but on the premise that there is now cause to revisit the balance already struck by our existing laws - by actions or inactions of Congress, by the courts, and by the Constitution. And that it was this carefully crafted balance that had left us vulnerable to terrorist threats.

The notion that war puts our rights out of balance is now at the center of the cases in court. Indeed, the administration's position on the law hinges on the existence of a state of war. The President's brief to the Second Circuit in Padilla used the phrases "in time of war," "wartime," or "armed conflict" 10 times in first nine pages. According to White House Counsel Alberto Gonzales, "[a]lthough the right to counsel is the fundamental part of our criminal justice system.those who urge the extension of [that right] .confuse the context of war with that of the criminal justice system." Or as Secretary Rumsfeld's attorney put it: "If one understands that the war on terrorism is quite different [from merely rhetorical uses of the term war], then the President's authority I think is ample." Despite the Constitution and the Congress' silence on the relevance of "war" under these circumstances, the administration's view is that once the executive says we are at war, he gains independent authority and total deference from the courts.

In these cases, the administration is proposing a dangerous new theory of law - one far more radical than those proposed by the executive even in previous, more traditional wars. As the President's lawyer explained, wartime made the balance otherwise struck by law less a matter of right than "a matter of prudence and policy." Or as Secretary Rumsfeld's lawyer explained, the argument was "a pure Trust Me." The administration wants to abandon reliance on law according to standards known to all and fixed in advance - the very definition of the rule of law - and move toward a system with vast executive discretion based on a sweeping leap of faith. In short, the President argues not that laws "speak with a different voice" in time of war, but that laws are actually silent.

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Deborah Pearlstein is Director of the U.S. Law and Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights).