National Security After September 11: A Rights Perspective

Remarks by Michael Posner
Executive Director, Human Rights First.

Presented to the American Bar Foundation
San Antonio, Texas
February 7, 2004

Posner's speech began with an introduction and special thanks to Jerry Shestack for his introductory remarks. Click here to read those remarks.

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My topic tonight is the challenges we face in the post September 11 world, as citizens and as lawyers, and to offer some thoughts on the American Bar Association's particular role in this intense debate.

I start from the premise that, as Americans, our experience of the world changed fundamentally on September 11. Though the threats posed by al Qaeda and other similar groups existed before September 11, the scope of the attacks on the World Trade Center and the Pentagon made the dangers posed by such groups a matter of national urgency. It became clearer than ever after these attacks that our government needed to take additional steps to ensure our security. Some measures that were taken quickly -- including the reinforcement of cockpit doors, and the federalization of the Transportation Security Administration, were both necessary and appropriate. Portions of President Bush's FY 2005 budget also include sensible provisions for security. For example, the President has requested a 10 percent increase in funding for the Department of Homeland Security. Included in this request are much needed monies for first responders -- police, firefighters, and emergency medical workers -- as well as more money for added protections against chemical and biological attacks, and to protect our nation's infrastructure, including airports and ports. These measures are needed to enhance our security.

At the same time, the Administration has failed to provide adequate funding for port security, and the FY2005 budget actually reduces funding for immigration enforcement by more than 40 percent. Moreover, the budget would boost funding for a new team of lawyers in the Justice Department to defend challenges to such policies as detention of enemy combatants, and would decrease funding for the Civil Rights Division.

There also are some other areas where the Administration has taken actions over the last two and a half years that have dramatically changed the relation between the government and its people. The result has been a loss of liberties and a serious undermining of the rule of law.

Human Rights First has evaluated the erosion of civil liberties in four key areas in a report entitled "Assessing the New Normal: Liberty and Security for the Post-September 11 United States." These four areas are: the treatment of security detainees; policies towards immigrants, non-citizens and minorities; personal privacy; and openness in government. While these changes should concern every citizen, they are at the core of what matters most to lawyers and the legal profession.

Enemy Combatant Cases
The most troubling area of concern relates to the cases of the so-called enemy combatants. Three individuals who have been arrested since September 11 on suspicion of conspiracy to commit terrorism are being held in a military brig in the US without charge or trial. Two of these people are US citizens.

Let me start with the case of Jose Padilla, a US citizen arrested on at O'Hare Airport in Chicago in May 2002. Padilla was traveling back to the US from Pakistan, where the government alleges he had contact with members of Al Qaeda who were plotting to detonate a dirty bomb in this country. In June 2002, a month after his arrest, Padilla was transferred to the Defense Department's control, taken to a military brig in South Carolina and designated an enemy combatant. For the last 20 months he has been held in incommunicado detention, never charged with any crime and denied any access to his lawyer. In recent days, the government has announced its intention to allow his lawyer access under fully monitored conditions, but this visit has yet to take place.

In December, the Second Circuit Court of Appeals ordered the government to either charge or release Padilla within 30 days. The case is likely to be heard by the US Supreme Court this spring. At the heart of the case is the government's assertion that the constitution doesn't apply to this US citizen arrested in the US, as long as the president asserts we are in a "war against terrorism." Let me read a sentence to you from an affidavit filed by the government attempting to justify its decision to deny Padilla the right to counsel. It was submitted by Admiral Lowell Jacoby, the head of the Defense Intelligence Agency. He wrote: "Anything that threatens the perceived dependency and trust between the subject and interrogator threatens the value of interrogation." He went on to say that any contact with a lawyer can undo this work. Mr. Jacoby concluded his affidavit by stressing "Only after Padilla has perceived that help is not on the way can the US reasonably expect to obtain all possible intelligence."

This chilling statement reflects a very different view of our legal order than you and I studied in law school. It assumes an entirely new framework, unprecedented in our history, where an American citizen arrested on our shores can be indefinitely detained and denied access to a lawyer.

The government has relied on a similar rationale in the case of Yaser Hamdi. Hamdi is also a US citizen, though he was picked up on the battlefield in Afghanistan in late 2001. He was apprehended by the Northern Alliance, an armed militia opposed to the Taliban. Hamdi was handed over to the US military in Afghanistan, and then transferred to Guantanamo.

In April 2002, when the US government realized that Hamdi was born in the US, and thus a citizen, he was transferred to the military brig in South Carolina. For 22 months, Hamdi has had no opportunity to challenge the basis for his detention. He has never been charged with a crime, nor offered Geneva Conventions protections for the treatment of prisoners of war. He saw his lawyer for the first time just this month -- under fully monitored conditions.

When Judge Robert Doumar reviewed Hamdi's case, he ordered the government to produce the factual evidence that is the basis for Hamdi's detention, as well as the screening criteria used by the government to determine his status. The government refused to comply, instead appealing Doumar's decision to the Fourth Circuit Court of Appeals. They reversed Judge Doumar and the case is now before the US Supreme Court.

What is the legal basis for these detentions? When President Bush was asked to define the term "enemy combatant," he replied, "You know, they're the bad guys." That is hardly a legal definition, but until now it is the only definition that Administration has offered.

In essence, what the Administration is saying is that the U.S. is now faced with a new threat - terrorism - which compels a radically different approach. Under rubric of the "war on terrorism," the Executive is asserting unprecedented powers, extending the battlefield to the fifty states. Under this new model, military tactics, including military detentions, trump the criminal justice system, and the dictates of intelligence-gathering and prevention measures trump our most basic constitutional protections, such as the right to a hearing, or the right to counsel.

There is a strikingly ad hoc quality to the way in which this new paradigm is being applied in practice. Consider the case of James Ujaama. Like Jose Padilla, Ujaama is a U.S. citizen suspected of having ties with Al Qaeda. Yet after Ujaama was arrested in Seattle, he was charged with a crime and prosecuted in a federal criminal court.

Consider the case of John Walker Lindh. Like Yaser Hamdi, he was a U.S. citizen arrested on the battlefield in Afghanistan. But unlike Hamdi, Lindh was charged with a crime, and was allowed to have a lawyer defend him in a court of law.

Finally, contrast the case of Ali Saleh Kahlah al-Marri with that of Zacarias Moussaoui. Both are non-citizens, both are suspected of having links to Al Qaeda, and both were indicted by federal prosecutors. Yet, days before al-Marri's case was set to go to trial, he was transferred to military custody as an enemy combatant. By contrast, Moussaoui's criminal prosecution continues.

Is there a principled way to distinguish the handling of these three sets of cases? If so, the Administration has made little effort to present it. Nor has the Administration made a serious effort to explain the continued detention of more than 650 enemy combatants at Guantanamo. Discarding traditional notions of humanitarian law, which is also known as the "laws of war," these presumptive prisoners of war, who were picked up on the battlefield of Afghanistan, have been relegated to legal limbo, described by one administration official as "the legal equivalent of outer space." It is encouraging here also, that the Supreme Court has decided to review the question of whether the federal courts have jurisdiction to review these detentions.

In a related area, the Administration has announced its intention to prosecute some of those held at Guantanamo before newly-created military commissions. The ABA, under the leadership of Neal Sonnet, has created a task force to review the commission's procedures. This task force has done an excellent job focusing on several areas where the new military commission's procedures diverge from traditional practices of US military justice. Among the differences they have noted are the absence of a right to appeal a conviction to the federal courts, the absence of a right to counsel of one's choosing, lack of access to the government's evidence (including exculpatory evidence), and a lack of attorney-client confidentiality.

These enemy combatant cases raise deeply troubling issues, and represent the most dramatic departure from our values as a society, our nation's history, and our profession's core commitment to the rule of law. If lawyers don't help to generate a more spirited public debate about these issues, then who will do so? The ABA needs to be at the center of this public debate. And all of us need to be raising the profile of these issues now.

Treatment of Non-Citizens, Immigrants and Minorities
A second broad category of issues arising out of the war against terrorism relates to our government's treatment of non-citizens, immigrants and minorities. Since September 11, a number of extraordinary immigration enforcement measures have been taken by the government, aimed principally against young men from South Asia and the Middle East. This pattern is familiar. Often in times of war or national emergency, foreigners, minorities or immigrants have been the most vulnerable targets to high-profile federal crackdowns. Remember the Mitchell-Palmer raids after World War I, or the internment of the Japanese by President Roosevelt during World War II. In retrospect we regret these rash, discriminatory actions. But they are widely popular at the moment of crisis, which helps explain why governments are inclined to carry them out.

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