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Liberty vs. Security

A closer look at how America's justice system has changed in the wake of Sept. 11.

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    Margaret Warner talked with Deputy Attorney General Larry Thompson last week, beginning with why so much of the legal proceedings have been conducted in secret.


    Nothing that we have been done has been enacted in secrecy. Every measure that we have undertaken is out in the open. Every measure that we have undertaken has had the sunlight of public attention. And almost all measures are not done unilaterally by members of the Department of Justice. These measures are subject to judicial review by judges and other judicial officers.


    But let me just ask you for instance, the chief immigration judge, who just explained to our viewers also is part of the Department of Justice, Michael Creppi, issued an order saying, and I'll just read it to you, that these hearings, these deportation hearings, were to be held in secret, "no visitors, no family, no press, not even confirming whether it's on the docket."


    The only thing that has been secret, if you will, has been the list of the individuals and the actual hearing itself. But the fact that an individual was taken into custody, the fact that he or she was in a particular detention facility, that was open to the public, if you will, to their friends, to their relatives, they could make phone calls.

    This was not done in the dark of night. People do not disappear in this country and we have really not done anything in secret, if you will. The actual administration of justice with respect to some of these cases was done, what we call in camera, because of national security and other concerns, and even that has been subject to judicial review, but nothing has been done in secret.


    A senior member of your staff out of your criminal division, Michael Chertoff, was at the ABA Convention last month– and the ABA has been critical of some of these measures– and his answer was, essentially, this is a time of war. Is that the basic underpinning here?


    Well, we are at war and we do face the threat of terrorist activity every day, but the fact of the matter is that the measures that we have enacted we believe are balanced, we believe they are consistent with the applicable laws and as I mentioned to you earlier, they have been enacted out in the open.


    So does that mean these measures are temporary or are these measures things that Americans will have to learn to live with indefinitely?


    Well, I don't think that there are measures that we will necessarily have to learn to live with indefinitely, but there are measures that are appropriate as long as we are at war and as long as we face the terrorist threats that we do.

    Every day, every day since 9/12, I go to work early in the morning and am confronted with a real and credible terrorist threat, and then you have to deal with how do you react to that, and we think that our underlying mission at the Department of Justice, our overwhelming priority, is the prevention and disruption of future terrorist attacks. That's what we think the American people expect of us. We know that's what the president expects of us and that's what we want to try to do.


    Now to pick up where the deputy Attorney General left off, we turn to four legal experts here to discuss the impact of September 11 on the justice system. We're joined by: Loretta Lynch, the former U.S. Attorney for the Eastern District of New York; Stuart Taylor of The National Journal; William Barr, who served as Attorney General under the first President Bush; and Laurence Tribe, Professor of Law at Harvard University.

    Professor Tribe, a year after 9/11, do we believe that the justice system is as balanced? Has the right balance been struck, I guess, between civil liberties and war time footing, on a war-time footing?


    Gwen, I don't think the balance really is what it ought to be primarily because the twin pillars of our fundamental system of liberty under law have both been eroded. The sky isn't falling. It's not quite as bad as what FDR did with Americans of Japanese origin. It's not like what Lincoln did. It's not as bad as it might be, but the twin pillars first of checks and balances.

    And second– excuse me– of public accountability and of openness have both been eroded. You just had an interview with the Deputy Attorney General who kept saying that the laws were enacted in the open, but nothing, he said, is in secret, if you will.

    Well, that's simply not the case. The U.S. Court of Appeals for the Sixth Circuit, which I think said quite rightly that democracies die behind closed doors, emphasized that there is in place a routine rule even for the most trivial deportations of someone who has overstayed his visa that as long as the Attorney General says it's to be heard in secret, it's heard in secret. When the Deputy Attorney General says it's only the actual hearing that is in secret, I shudder.

    Now the other pillar is checks and balances. We were told that judicial review is always available, but the fact is– and I think it cannot be denied– that the position of the administration is that when they say someone is an enemy combatant, even if it's an American citizen arrested in an American city like Jose Padilla, that person has no access to court, no right to a hearing, no access to counsel. That, I think, erodes checks and balances. As I say it's not as bad as it might be but it's pretty scary.


    Professor Tribe, let Mr. Barr get a chance to respond to that same question about whether we've struck the right balance.


    Absolutely. The danger to our civil liberties comes from the terrorists, of people who are afraid to get blown up by terrorists, not the government's actions. I think the government's actions have been restrained, moderate, well within the law and pose no genuine civil liberties concerns.

    Larry is confusing two separate and distinct realms. The criminal justice realm deals with the rules that we set within a society to discipline recalcitrant members who break the rules and what's involved there is a process involved in the punishing of those members of the body politic. It's a wholly separate issue when our society is under attack by a foreign organized force. In that situation, we're in an armed conflict. We're at war.

    The Constitution doesn't give civil liberties to our enemies. The Constitution is concerned with us winning the war by either killing or incapacitating those who are trying to kill us. And so I'm afraid that many of the so-called civil libertarians are suggesting that we apply the rules that relate to the criminal justice system and apply them to armed combatants who are fighting a war against us.

    That's never been done in our history and it's totally inappropriate. Let me just say that as to the people we have dealt with under the criminal justice system, those people who have been detained for immigration violations or have been treated as material witnesses, we have gone through the criminal justice process. They have access to lawyers. That process is in full swing. There's no derogation of civil liberties. There is a dispute over whether hearings can be secret in immigration cases. That's going to be sorted out by the Supreme Court.


    Okay. Let me interrupt you because I want to get around to everybody one time here. Stuart Taylor, civil liberties, should that be a flexible concept?


    I think it should be a flexible concept. I agree with the first thing Bill Barr said. I think I agree with most of the rest of what Larry Tribe said. I'll take it from an Alexander Hamilton quotation. The vigor of government is essential to the security of liberty. Their interests can never be separated.

    What he meant and I think what Mr. Barr means is if our enemies are able to blow up people at will in the United States and terrorize us, the freedom not to be wire tapped isn't really worth very much and the government needs the investigative powers– and I agree they need broader investigative powers– to deal with that. Where I think the administration has gone off the rails– and I'm not the only one who thinks so.

    I've talked to some conservatives who are similarly troubled– is in their detention policies and in particular in two cases they have people in military detention, American citizens, one arrested in the United States, Jose Padilla, who have not been allowed not only to see lawyers. They haven't been allowed to see judges. They will never for the rest of their lives according to this administration's policy be able to go in front of a judge and say, "Here's my story. They got the wrong guy." No right ever to do that. That is the administration's policy. I submit that is an outrageous policy that the courts – the Supreme Court I hope would reject.

    As to the 1200 detainees that were discussed– and we saw the Attorney Genera on camera talking about if you overstay your visa one day– one thing that I think he tends to fudge and I think people lose sight of is the vast majority of those, 99 percent, had nothing to do with terrorism. It proved. They may have violated some immigration law.

    They may have overstayed… but he's sort of assume inning the way he talks about them that they're all terrorists. The way they were treated while in detention is consistent with that assumption. They were thrown in with accused criminals or criminals. They were strip searched, manacled. I think the detention policy is way beyond what's necessary to protect our security needs.


    Loretta Lynch, as a former prosecutor how handy is it as you're trying to investigate these kinds of cases especially in a time of war, I suppose, is it to have access to greater latitude on wire tapping and how much do you have to walk the line to make sure you're not going too far in violating individual rights?


    Well, actually that's a line that you walk in every case. I mean, every case particularly one involving electronic surveillance where you are essentially surveilling people in private situations has got to be reviewed carefully. They are still reviewed by the courts even under the new laws that are passed this most recent year under the Patriot Act.

    The issue really that's been pointed out by the previous speakers is the tension that's arisen in our current situation. You know, we're having… we really are experiencing a switch in the law enforcement paradigm in this country. It primarily was reactive. Let's catch someone, adjudicate the case and convict them.

    We are really switching into a deterrence mode. The nature of the threat requires that we try and actually prevent actions before they occur. And that actually does call for a greater use of certain types of techniques.

    What it also calls for, however, under our system is the same accountability when you expand these techniques as you used before. One thing that we have to remember is that the system works primarily by the cooperation of everyone involved in it.

    One of the problems with excessive detention, for example, of large members of one community or another is it ultimately it's going to backfire because ultimately we may need cooperation and information from some of the very members of that community that we may not have treated with the way that we would like to be treated ourselves if we were detained. And that's something that requires foresight and discretion. I mean, everything that the government does– I don't think anyone doubts their purpose and their goal is to protect us.

    However, as they strive to do that, we have to keep in place the essential accountability that law enforcement and government has always got to be subject to.


    Professor Tribe, when we talk about the cases of the most notorious cases the one that's being prosecuted now in criminal court of Zacarias Moussaoui and of the Americans, the American detainees, Jose Padilla and Yasser Hamdi, what is the difference? People begin to think of them all as people who are suspects and should be held. But is there a difference when they're American citizens and they're detainees and when they're not?


    So far the courts have treated the fact that someone is an American citizen as entitling that person to better treatment in some respects. But when it comes to the fundamental right to talk to a lawyer, to talk to a judge, not to have the government unilaterally by its own say so draw the boundary between these two models, the preventive wartime model and the reactive judicial model, when it comes to that, there's really no difference between citizens and non-citizens.

    I'm struck as I hear my friend Bill Barr say that I'm simply confused about the difference between war and justice. But I think Bill is confused about who in our system ultimately answers those questions. Of course when it is admitted that someone is an unlawful enemy combatant, that person is not entitled to be treated as a prisoner of war and not entitled to be treated as a criminal defendant.

    But striking the balance between war and justice, deciding whether someone who, for example, went to a meeting of a cell of al-Qaida as an American citizen can simply be written off by a unilateral stroke of the executive pen and detained indefinitely– and it is indefinitely– that's not a function for the president alone. And I do want to stress just a few months ago in May, the deputy attorney general said in a candid– and I think honest– moment, he said there will never be another normal.

    This is not like any other war. It's not like the Civil War, the Revolutionary War, World War I or II. This one by definition can go on forever like the war on cancer or the war on drugs. Because that's right, we have to be unusually careful about checks and balances and about openness and accountability — just as Ms. Lynch said.


    Let me ask Mr. Barr this question which is what is the proper role for the courts in all this? Some courts have been digging their heels in and putting on the brakes at some of the administration's request. What should the proper role of the courts be?


    I think that's the core question as we try to determine which is the applicable model. I think Larry is right that– and it's important to recognize– that when someone is an armed combatant against the United States they don't have legal rights. They're not entitled to a lawyer. No charges have to be brought against them.

    There were approximately 300 American citizens who were imprisoned in the United States as members of the Varmacht in the Italian army in World War II. They didn't have access to judges. The president didn't have to prove they were members of the Vermacht. They were prisoners of war because they were enemy combatants.

    The question comes up can the president willy-nilly decide who is an enemy combatant and say I'm going to treat you as an enemy combatant, rather than on the law enforcement side, and what is the role of the courts? I think this is really the crux of the issue. My view is that it's the president's responsibility in the first instance to make that determination. That's important to the power to wage war. The commander in chief has to be able to make the initial decision. This is an enemy combatant and we're putting him and treating him as a prisoner.

    The role of the courts in my view is quite limited. I think Larry was exaggerating when he said these people have no access to the courts. In fact, writs of habeas corpus have been sought in the Hamdi case and the issue is being presented as to what is the role of the judge. In my view, the judge is not to make the decision and it's not the judge's determination as to whether in fact this person was or was not a member of al-Qaida. The issue is whether the President has made that determination.

    There's some evidence to support it. It's made in good faith. You can't have judges second guessing fundamental decisions during a war as to who the enemy is.


    Stuart Taylor.


    I think the reality is illustrative. What we're talking about here at least in some cases is maybe the Northern Alliance picked up somebody, this fellow Hamdi, hands him over to somebody who hands him over to the Americans. He goes through a chain of people and at the end of the process, a two-page declaration by someone named Michael Mobs in the Pentagon is presented to a judge saying this guy is an enemy combatant and we know it and here's why.

    The administration's position is, "this guy never gets to go in front of the judge." Some lawyer from outside hired by his father may be able to run into court and say habeas corpus but the guy never gets to go before a judge and tell his story let alone have the… any testing. Now, when the guy is picked up in Afghanistan, that's one thing. But they could do it to you or to me. Under their position, we'd never be able to see a judge.


    Loretta Lynch, quickly and finally, do you think as Deputy Attorney General Thomson said that these changes are now permanent ones?


    Well actually I hope not, because that would mean that the threat would remain permanent and our sense of fear and insecurity, which led to this quite frankly, would remain permanent. I think there's always got to be a constant review, a constant scrutiny over the effectiveness of the provisions that we adopt in times of emergency.

    I think people understand that the Administration may want to change certain procedures but as I said before the Administration has always got to be able to explain that to the people who are going to be subject to those provisions. Many of the new laws that were passed are not meant to be permanent. There are procedures in place for them to be reviewed in the next three to five years, which is a good thing. Also I think judicial review is important as well. As we learn more about this, as we strike this balance, then I think we're going to know.


    Thank you all very much.