Social Education 66(2), pp. 90-95
©2002 National Council for the Social Studies
Bruce G. Peabody
At the heart of our constitutional order is a bold aspirationthat we can bind ourselves with deliberately considered, written commands so that we are guided in our approach to public problems by what Alexander Hamilton called reflection and choice rather than accident and force. This aspiration is sometimes strained during crises. Unforeseen events, such as the terrorist attacks of September 11, test the extent to which we are meaningfully bound by our constitutional values when threatened by disorder or danger.
Historically, we have reason to be optimistic that our Constitution and its protections will survive this test. Explicit provisions in the Constitution anticipate and provide for emergencies, and our democracy has in the past withstood a series of trials, including devastating and lengthy periods of war. Yet some responses to emergency situations would clearly be beyond the pale and could derogate from our highest principles.
After the September 11 attacks, the legislative and executive branches enacted a series of measures seeking to punish those responsible and to prevent future violence. The ensuing debate about the propriety and legality of these measures has largely been a discussion about whether they have simply reapplied our constitutional principles in the context of a national crisis, or whether our political leaders have threatened our core beliefs about governance and individual liberty. This conversation is not just about how to deal with the continued threat of terrorism, but how to preserve our constitutional rule into the future. We can bring this debate into sharper relief by examining specific aspects of the Bush administrations antiterrorism efforts, which have been simultaneously defended as applications of longstanding constitutional principles and condemned as damaging our enduring legal ideals.
This article considers three prominent issues involving apparent conflict between civil liberties and the war against terrorismthe governments proposed eavesdropping on conversations between prisoners and their attorneys, the effectiveness of the constitutional right to be silent for non-U.S. citizens facing possible deportation orders, and the Bush administrations planned military tribunals. Examining and evaluating these topics helps to highlight the concerns of contemporary policymakers while providing a vivid sense of what is at stake for U.S. citizens and others who seek protection under the Constitution in the twenty-first century. Put somewhat differently, exploring these components of our national antiterrorism efforts helps us depict and appreciate the challenge of applying our constitutional values amidst contemporary problems, while still critically assessing whether these measures go too far.
Legal and Political Responses to September 11
The executive and legislative branches responded to the September terrorism attacks with policies designed to prosecute those involved and prevent additional threats. Since September, for example, the administration has imprisoned more than five hundred suspects on a variety of charges, including immigration violations, terrorist offenses, and espionage. The Department of Justice has refused to reveal the precise number of those held, the identities of most detainees, the specific reasons for their imprisonment, and the exact nature of the evidence used against them.1
As a supplement to this detention policy, the Department of Justice issued a rule at the end of October allowing officials to monitor privileged conversations between terrorism suspects and their lawyers. The attorney-client privilege is a rule of evidence governing what is admissible in court; it is based on a belief that it is more important to protect conversations between a lawyer and his or her client than to obtain all evidence that might be useful in legal proceedings.
Attorney General John Ashcroft defended the monitoring measure as a tool that would be used extremely selectively to stop impending terrorist acts and to save American lives. The regulation allows federal officials to listen in on attorney-client conversations when they have reasonable suspicion to believe that a particular terrorism suspect may disclose information to his or her attorney to facilitate terrorism. According to administration officials, the order will apply only to alleged terrorism suspects, and those subject to the measure will be informed in advance and in writing that their conversations might be scrutinized. The rule also stipulates that information obtained by officials monitoring privileged conversations cannot be used for prosecuting crimes. Thus, the new regulation seems to keep the attorney-client privilege intact insofar as protected conversations cannot be used in court.
Although the attorney-client privilege is a longstanding rule on its own, it also reinforces the protections of the Sixth Amendment, which provides that in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense. The law governing the privilege has traditionally emphasized the importance of unfettered discussions between the accused and his or her counsel to plan effective defense strategy and secure the legal rights needed for a fair trial. To defend a client vigorously, lawyers must have access to all facts and evidence surrounding a case, including material (such as confessions) that may be harmful to a defendant and suggest his or her guilt.2 The U.S. Supreme Court has recognized that professional conversations between a suspect and his or her lawyer must be kept confidential unless the former chooses to waive this privacy protection or unless the discussions relate to pending criminal activity.
On its face, the Bush administrations efforts to listen in on conversations between suspected terrorists and their lawyers might seem like a reasonable balancing of the governments interests in combating terrorism while still securing important constitutional protections. After all, Attorney General Ashcroft has emphasized that the measure would be used in a limited wayin December he announced that only 16 out of 158,000 federal inmates could be monitored under the new rule. Moreover, any information overheard, while potentially useful in disrupting terrorism, would not be available for prosecution, providing a further legal protection for those being detained.
Notwithstanding these reassurances, the new rule has several curious and troubling features. To begin with, the measure deviates, seemingly needlessly, from the standard legal procedure for listening in on attorney-client conversations. Prior to the administrations new policy, privileged communications could be intercepted when a judge issued a warrant based on a showing of probable cause that the discussions under question would further the commission of a crime. This traditional, judicially sanctioned monitoring procedure, unlike the new Department of Justice rule, does not require prosecutors to inform those monitored in advancean allowance that presumably enables law enforcement officials to secure more valuable information. In addition, by placing the decision about whether to authorize the eavesdropping in the hands of an independent magistrate (rather than an agent of the executive branch), the old procedure seems to provide a better protection against potential abuse. Despite the attorney genera#146;s claims that information overheard will not be used for prosecution purposes, officials might be tempted to go after this evidence through independent meansby talking to other suspects, for example, or re-interrogating the accused.
A second basic problem with the new wiretapping initiative is that, despite claims that it will be applied very narrowly, its language is fairly sweeping. The provisions apply to all persons in the custody of the Justice Department, including aliens, citizens, immigration detainees, and material witnesses (that is, persons who have information or evidence vital to a case) who are being held pending trial. Finally, the new rule may undermine an attorneys ability to prepare an effective defense for his or her client, as the accused will likely be less forthcoming with a lawyer in conversations that may be monitored; the rule will also exacerbate the suspicion with which many of the accused regard their attorneys, most of whom will be appointed by the court.
The focus of antiterrorism efforts since September 11 has been on non-U.S. citizens (aliens). In October, Congress passed antiterrorism legislation known as the USA PATRIOT Act (an acronym for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act). This Act allows the government to hold non-U.S. citizens without formal charges for seven days and to keep them in detention indefinitely as long as the attorney general certifies that he has reasonable grounds to believe that the individuals in question are terrorists or represent a threat to national security. The PATRIOT Act also provides that aliens can be deported for contributing money or providing other support to organizations linked with terrorism. For hundreds of aliens who have been detained as part of the administrations antiterrorism efforts, these provisions arguably compromise some of the purposes of the constitutional right to remain silent.
Among other provisions, the Fifth Amendment specifies that no person can be compelled in any criminal case to be a witness against himself. This right reflects a belief that to secure the integrity of the criminal process and protect the autonomy of the accused, people should not be forced to incriminate themselves. The Fifth Amendment is intended to deter law enforcement officials from using physical or psychological coercion to obtain information from suspects. In the landmark case Miranda v. Arizona,3 the U.S. Supreme Court stipulated that individuals facing custodial interrogation (roughly, questioning in circumstances where the suspect does not feel free to leave) must be informed in advance of their constitutional right not to answer questions that might be used against them in a criminal case.
But deportation proceedings are civil matters. Therefore, non-U.S. citizens facing removal under the new antiterrorism legislation need not be Mirandized before being questioned by immigration and law enforcement officials (unless these agents intend also to prosecute those questioned in criminal court). Accused aliens, therefore, face the prospect of being questioned about their supposed involvement with terrorism under potentially coercive and confusing conditions: Many of those accused will not have access to counsel (in deportation proceedings, aliens can retain counsel, but at their own expense) and will not necessarily know how long or why they are being heldbecause of the permissiveness of the new legislation. There is at least some risk, under these conditions, that innocent detainees, some of whom may also face language or educational barriers to understanding questions posed to them, will be unable to dispel the suspicions of government officials, resulting in their continued detention (which can be indefinite under the PATRIOT Act) or removal from the United States.
Among the Bush administrations numerous antiterrorism initiatives, its decision to use military tribunals to try suspected terrorists has probably prompted the most widespread concerns in terms of its civil liberties implications (see interview, p. 96). On November 13, 2001, President Bush issued an executive order allowing the Department of Defense to draft rules for establishing military tribunals whose operation and judgments would remain under the presidents ultimate discretion. Under the original order, the tribunals can be used to try any non-U.S. citizen, including permanent legal residents within and foreign nationals outside the United States who are suspected of committing, planning, or supporting international terrorism. In the interests of national security, the tribunals can take place at any time and any place, and they can be kept secret from the public.
Bushs executive order also establishes that the commissions can rule on both relevant facts and questions of law, such as what kinds of transgressions make suspects liable for military tribunal. The military officers trying the cases can consider any evidence that has probative value to a reasonable person, setting a lower standard of review than the preponderance of the evidence requirement in civilian trials, and allowing the tribunals to assess categories of evidence that would ordinarily be excluded (including hearsay, coerced confessions, and evidence seized without a warrant or probable cause). Convictions can be secured by a two-thirds vote rather than through a unanimous determination of guilt as required in criminal trials. Among other punishments, the tribunals are authorized to impose a sentence of death.
Even the most skeptical of the administrations critics concede that military tribunals have a fairly substantial legal and historical foundation. Traditionally, military tribunals have been used to prosecute unlawful combatants, that is, individuals who have violated the often ill-defined laws of war and who are therefore not entitled to the protections and procedures due ordinary prisoners of war. Stated differently, military tribunals are supposed to identify and punish illegal activity committed during war that could not be effectively and expediently prosecuted through more ordinary mechanisms. In the words of the Supreme Court, military tribunals are appropriate to try certain classes of offense which in war would go unpunished in the absence of a provisional forum for the trial of the offenders.4
In the United States, military tribunals have had a long, if not necessarily distinguished, career. Used as early as the American revolution, these mechanisms were used most famously in connection with the Civil War and World War II. More than four thousand military tribunals were conducted during and immediately after the Civil War, most prominently following the assassination of Abraham Lincoln. In World War II, two groups of German agents (who had landed on U.S. shores with orders to sabotage military and civilian targets) were tried by military courts that had been secretly and unilaterally established by President Franklin Roosevelt. In 1945, General Douglas MacArthur gave orders to create military tribunals in all of Japan and other areas occupied by the armed forces commanded by the commander-in-chief, United States Army Pacific. Two Japanese generals were convicted and executed under the tribunals for ordering atrocities against American troops and their allies, despite questions about the validity of the evidence used to try their cases and remaining doubt about whether they were actually responsible for these orders.
Acknowledging that there is some precedent for military tribunals is not to concede that these forums are necessarily wise. Some critics have suggested that the very idea of special terrorism courts is objectionable and that we should try suspects in regular civilian criminal courts, thereby affirming the ongoing strength and fairness of our regular justice system. A plausible case can be made, however, that, at least in theory, military tribunals are the appropriate mechanism for dealing with some aspects of terrorism. As White House counsel Alberto Gonzales has argued,
[T] hey spare American jurors, judges, and courts the grave risks associated with terrorist trials. They allow the government to use classified information as evidence without compromising intelligence or military efforts. They can dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals.5
In other words, military tribunals may be more appropriate than ordinary courts in balancing the nations interest in security and order with its concerns about liberty.
Notwithstanding the power of this defense of military tribunals, many of the details of the administrations specific proposal are alarming. To be fair, it is difficult to assess the tribunals because they are something of a moving target. Draft rules for the tribunals, made available in late December, suggested that the Bush administration had been partly responsive to criticism that its initial executive order was incompatible with basic civil liberties protections and international laws protecting human rights. Thus, the December draft regulations provide safeguards for the accused beyond those strictly required under the executive order. For example, the rules, unlike the original executive order, require a unanimous verdict to impose the death penalty, allow defendants to retain their own private lawyers (in addition to having military counsel provided), and permit the military proceedings to be open to the public and press (although they may be closed to prevent national security secrets from being revealed). Finally, although the executive order indicated that the accused were not privileged to have the military tribunal proceedings examined by courts for procedural fairness, the subsequent draft rules set out an appeals process. Through this process, a separate, three-member panel of military officers can review tribunals sentencing decisions and make recommendations to the secretary of defense about whether the decisions should be upheld.
Even with these added protections, however, Bushs executive order and preliminary rules leave a number of unanswered questions, and ultimately pose a substantial threat to some of our nations most cherished constitutional principles. To begin with, the legal authority for Bushs order is uncertain. The leading Supreme Court case on military tribunals suggests that a formal declaration of war may be needed to create them, which Bush arguably did not receive when Congress authorized him to use all necessary and appropriate force against the nations, organizations or individuals involved in the September 11 attacks.6 Even if this authorization of force measure does provide some backing for the military courts, the presidents order seems to go too farbecause Congress approved executive action specifically in response to the September attacks, whereas the tribunals seek more generally to combat international terrorism. To put Bushs order on firm legal footing, Congress may need to affirm the tribunals legitimacy, especially because the Constitution explicitly gives the legislature the power [t]o define and punish. . . . Offenses against the Law of Nations.
In addition to these observations about the uncertain legal basis for the presidents actions, Bushs military tribunals threaten the rights of the accused by, for example, allowing for more relaxed standards of evidence and generally diminished procedural protections. Attorney General Ashcroft has countered this charge by arguing that [F]oreign terrorists who commit war crimes against the United States . . . are not entitled to, and do not deserve the protection of the American Constitution, yet these remarks are not terribly reassuring. Much of the justification for the civil liberties enshrined in the Constitution is based on a belief that those accused of crimes may be innocent. The military tribunals appear to be premised on a different idea: that those brought before them are guilty and therefore are not entitled to traditional legal rights.
The guidelines surrounding military tribunals also seem to permit considerable discretion and ambiguity about who could face them. The broad language of the executive order allows military tribunals to apply to past crimes and to be used indefinitely into the future. It does not provide any sunset provision suggesting that the tribunals will operate for only a set duration or until certain conditions are met. Under the order, non-U.S. citizens can face tribunals as long as the president has reason to believe that they are involved in terrorist activities (which include harboring terroristsa notion that is not further defined).
Administration officials have tried to reassure the public by explaining that the tribunals will be used only against a limited class of individuals. White House counsel Gonzales suggested, for example, that they would be used only for al Qaeda members who were captured in war. But the language of the executive order is not so restrictive and potentially affects millions of foreign nationals, including legal permanent residents of the United States. In sum, the target of the order is elusive, in part because of the elusiveness of the terrorism threat that it is supposed to combat. Among other dangers, legally sanctioning such a broad jurisdiction for military tribunals in the United States may bolster their development and use overseasin nations with less of a commitment to human rights than our own.
Civil Liberties and National Security in the Twenty-first Century
One suspects that our ultimate assessment of the governments response to the events on September 11 will be retrospective and pragmatic. Thus, we will evaluate the nations efforts to combat terrorism by how effective we are in preventing future death and destruction. As Professor Laurence Tribe commented in hearings before the Senate Judiciary Committee, [T]he survival of the freedoms we cherish, for which many prior generations have paid dearly in blood, depends on our success. Truly, the greatest threat to our civil liberties is failure in the mission to secure America from terrorist violence.7 We will also judge our policies by how many innocents are swept up in our new legal machinery.
As important as these considerations are, however, we should also assess our antiterrorism efforts by an additional standard. For our constitutional project to endure, it must not only confront the current crisis but also emerge from these perils as a still compelling experiment in ordered liberty. September 11 painfully reminds us that in this new century, our nations fate is more closely connected with those of other nations and other peoples than ever before. To encourage the most vigorous and widespread support of our polity and its constitutional foundationsboth domestically and abroadwe will need to show the ongoing relevance and endurance of our ideals, especially our commitment to an inclusive notion of human rights and civil liberties. G
1. Ed O Brien, In War, Is Law Silent? Security and Freedom after September 11, Social Education 65, no. 7 (November/December 2001): 420.
2. Larry Gaines, Michael Kaune, and Roger LeRoy Miller, Criminal Justice in Action: The Core (Belmont, Calif.: Wadsworth/Thomson Learning, 2001), 212-13, 215.
3. 384 U.S. 436, 1966.
4. Madsen v. Kinsella, 343 U.S. 341, 348 n.8 (1952).
5. Albert R. Gonzales, Martial Justice, Full and Fair, New York Times (November 30, 2001).
6. See Ex Parte Quirin, 31 U.S. 1 (1942) and P.L. No. 107-40 (2001), respectively.
7. Laurence Tribe, Preserving Freedoms While Defending Against Terrorism. Testimony delivered to the Senate Judiciary Committee, Washington, D.C. (December 4, 2001).
Bruce G. Peabody has written extensively on constitutional law and American politics. He would like to thank Adam Rappaport, Scott Gant, and Edward Ungvarsky for their help with this piece.
Note to teachers: In this issue of Social Education, the contributions to Looking at the Law explore highly complex and controversial law-related aspects of Americas approach to the War on Terrorism. The activities have been designed to help students gather related information and master key understandings of issues involved in the public debate. Teachers are encouraged to engage in thoughtful planning and adaptation of these instructional ideas for their individual teaching situations. They will find many tools at the ABA Division for Public Educations Web site (www.abanet.org/publiced) by clicking on the banner notice for the conversations on law and liberty initiative. Specially designed to further understanding and discussion about the events and aftermath of September 11, and to encourage continued, informed dialogue about the issues arising from them, the site features lesson formats, activity ideas, graphic aids, and a wealth of multimedia resources for educators at all levels.
1. Furnish students with copies of the Fifth Amendment. Explain that it contains basic rights of people accused of committing a crime. Have students identify these rights, circling the terms unless, except, and without wherever they appear. Explain that constitutional rights arent always absolute. The terms theyve circled signal exceptions. Which rights have exceptions? Which do not? What implications might these exceptions have for those accused of terrorist activities in the United States? Should non-U.S. citizens as well as citizens possess these rights? Have students explain their answers.
2. Prior to September 11, there was heated public debate over the effects of the Anti-Terrorism and Effective Death Penalty (Antiterrorism) Act of 1996 (digest and summary at www.milnet.com/milnet/terract/digest.htm). Ask a group of students to read the article at www.abanet.org/publiced/youth/sia/immigrants/lockedup.html and prepare a demonstration chart, including lists of pros and cons, with which to help classmates learn about the acts controversial features. Presenters should define and use such terms as detainee, due process, indefinite detention, and secret evidence. Lead students in a discussion of what changes in public attitudes might have resulted because of September 11, and whether they think such changes are justified.
3. In October, Congress passed the USA PATRIOT Act of 2001 to increase national security by strengthening immigration, detention, and deportation controls, among others. Download and assign for student reading a summary of the act (available at www.sackskolken.com). Ask students how this act compares to the Antiterrorism Act (see question 2). Divide students into a Student Senate and House. Each chamber will argue the merits of the PATRIOT Acts features among its own members and create a bill that has majority support. Representatives from each chamber will be selected to meet in Joint Committee, where they will argue for their versions of the bill until all disagreements are resolved and a final version is selected. Then the class will vote to pass or kill its own version of the PATRIOT Act.
4. Ask for several volunteers to represent the views of individuals and organizations on any controversial aspect of the War on Terrorism. These views, which will be presented at a town meeting moderated by a student, can be researched in newspapers and magazines, on the television and radio, and online. For example, the following organizations feature related online position statements:
American Bar Association: www.abanet.org
American Civil Liberties Union: www.aclu.org/congress/
Amnesty International: www.web.amnesty.org
American-Arab Anti-Discrimination Committee: www.adc.org
Center for Immigration Studies: www.cis.org/articles/2001/censusillegalsme.html
Electronic Frontier Foundation: www.eff.org
Federation for American Immigration Reform: www.fairus.org/html/08318109.htm
Human Rights Watch: www.hrw.org/press/2001/
New York Times Learning Network: www.nytimes.com/learning/general/specials/terrorism
Resources for Educators: www.teachingforchange.org/Sept11.htm
U.S. Department of State Response on Terrorism: www.usinfo.state.gov/topical/pol/terror
5. Guide the moderator in working with presenters to avoid duplication of topics or supporting arguments and limit them to three or four major proposals, which they will furnish as a numbered list to each student before their presentation begins. A question-and-answer session will follow each presentation, and then the moderator will instruct students to circle the proposals that they support and submit their lists for tallying. The moderator will compile and present the findings of this Student Opinion Poll after all presentations have been completed.
6. Furnish each student with a copy of the Sixth Amendment. Explain that it identifies some basic rights people have when they are tried for a crime in civilian court (such as U.S. district court). As a class, review each right. Ask whether there are any exceptions signaled by words such as unless, except, or without (see question 1). Explain that military courts, as opposed to civilian courts, try members of the Armed Forces in trials called courts-martial. Use an overhead projector to display the chart that accompanies the interview with Frank Moran that follows this article (see p. 98). Tell students that the chart contrasts the protections afforded in civilian trials and courts-martial; briefly discuss one or two examples only.
7. Explain that a third type of court sometimes used by the United States is the military tribunal (or commission), which President George W. Bush authorized in November 2001 to try non-U.S. citizens for acts of terrorism against the United States. Explain that many aspects of how these tribunals will be conducted have not yet been defined. Assign three to four students to each component in the chart. Have each group use the Sixth Amendment, along with the information in the chart, to create its own version of military tribunal rules governing the component. If the class can agree on a final version for all components, have students finalize and submit it to the Secretary of Defenses office for consideration at www.defenselink.mil/faq/comment.html