A different war: Ten key questions about the war on terror

George Washington Law Review

Volumn 75, Issue 5-6, 2007, Pages 1021-1048

  Saltzburg, Stephen A ^a,b  

^a WOODBURY UNIVERSITY   (United States)

^b GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 36049038205     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (202)

1. As Professor Bruce Ackerman aptly put it, "[i]n confronting terrorism, we need to distinguish between two different dangers: the physical threat to the population and the political threat to our constitutional system." Bruce Ackerman, Terrorism and the Constitutional Order, 75 FORDHAM L. REV. 475, 491 (2006). Ackerman questions whether naming the response to terror a "war" is apt or useful and argues that "basic points are obscured by the fog of war talk."
2. Id. at 477-78.
3. One of these questions is whether it should be called a "war on terror." Zbigniew Brzezinski wrote the following: "The damage these three words have done - a classic self-inflicted wound - is infinitely greater than any wild dreams entertained by the fanatical perpetrators of the 9/11 attacks when they were plotting against us in distant Afghanistan. The phrase itself is meaningless." Zbigniew Brzezinski, Op-Ed., War on Terror, WASH. POST, Mar. 25, 2007. at B1. Homeland Security Secretary Michael Chertoff responded: "Brzezinski is deeply mistaken to mock the notion that we are at war and to suggest that we should adopt 'more muted reactions' to acts of terrorism."
4. Michael Chertoff, Op-Ed., Make No Mistake: This Is War, WASH. POST, Apr. 22, 2007, at B7.
5. The lack of an identifiable war theatre makes this war different from other wars that have been waged by the United States and obscures concepts such as when the war may be declared won or lost. See Review of Department of Defense Detention and Interrogation Policy and Operations in the Global War on Terrorism: Hearing Before the Subcomm. on Personnel of the H. Comm. on Armed Servs., 109th Cong. 182 (2006) [hereinafter Detention and Interrogation Policy Hearing] (statement of Sen. Lindsey O. Graham, Chairman, Subcomm. on Personnel of the H. Comm. on Armed Servs.) ("No one's really contemplated this kind of war before.");
6. Jeffrey Toobin, Killing Habeas Corpus, NEW YORKER, Dec. 4, 2006, at 50 (quoting Senator Graham as saying, "The war on terror is not like any other war. It's a war without end.").
7. Despite the difficulty in setting the boundaries of the war on terror, it is undeniable that the United States military community is treating the battle against terrorism as nothing less than a global war and not merely a law enforcement action. See Detention and Interrogation Policy Hearing, supra note 3, at 180 (statement of Brig. Gen. Thomas L. Hemingway, U.S. Air Force, Legal Advisor to the Appointing Authority for the Office of Military Commissions) ("America is at war. It's a war as tangible as the blood and dust that littered the streets of Manhattan on September 11.").
8. Alan Cowell, Subway and Bus Blasts in London Kill at Least 37, N.Y. TIMES, July 8, 2005, at A1.
9. Mona El-Naggar & Greg Myre, Blasts in Egypt Kill at Least 59 at Sinai Resort, N.Y. TIMES, July 23, 2005, at A1.
10. Raymond Bonner, Bombing at Resort in Indonesia Kills 150 and Hurts Scores More, N.Y. TIMES, Oct. 13, 2002, at A1.
11. Hassan M. Fattah & Michael Slackman, 3 Hotels Bombed in Jordan; At Least 57 Die, N.Y. TIMES, Nov. 10, 2005, at A1.
12. Neil MacFarquhar, Militants Attack in Saudi Oil Area; At Least 10 Dead, N.Y. TIMES, May 30, 2004, at A1.
13. Elaine Sciolino, 10 Bombs Shatter Trains in Madrid, Killing 192, N.Y. TIMES, Mar. 12, 2004, at A1.
14. A German official, for example, has said Germany is a potential terrorist target. Cowell, supra note 5, at A11.
15. E.g., MacFarquhar, supra note 9, at A8 (reporting that the operations director for al Qaeda in Saudi Arabia has announced a battle plan for militants to overthrow the government there).
16. See generally Time Change: FISA for the 21st Century: Hearing before the S. Comm. on the Judiciary, 109th Cong. (2006) (Statement of Bryan Cunningham, Principal, Morgan & Cunningham LLC), available at http://www.morgancunningham.net/show_article.php?id=35.
17. U.S. CONST. art. II, §2, cl. 1 ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . .").
18. U.S. CONST, art. II, §1, cl. 7 ("Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'").
19. Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739 (to be codified at 10 U.S.C. §801 note, 28 U.S.C. §2241, and 42 U.S.C. §2000dd).
20. For example, Senator John McCain pressed witnesses, including me, for answers as to whether the Army Field Manual should apply to interrogation of all detainees. See Detention and Interrogation Policy Hearing, supra note 3, at 236.
21. See Douglas Birch, Torture: Security vs. Values; The U.S. Struggles to Draw the Line on Interrogation, BALT. SUN, Dec. 18, 2005, at IF.
22. See Matt Zoller Seitz, Torture Works on TV, TORNOTO STAR, Dec. 27, 2005, at C6 (referring to Senator John McCain's comments regarding torture);
23. Jill Zuckman, McCain Not Flinching on Torture; White House Resists Push to Put Ban in Bill, CHI. TRIB., Dec. 15, 2005, at 1 (similar reference).
24. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered sections of 10, 18, 28, and 42 U.S.C).
25. Detention and Interrogation Policy Hearing, supra note 3, at 163 (statement of Sen. Lindsey O. Graham, Chairman, Subcomm. on Personnel of the H. Comm. on Armed Servs.) ("I have one final thought. Congress has been absent without leave (AWOL). We have criticized and we have applauded, but we have been absent when it comes to designing policies, and dealing with the capture of people on land and sea who are involved in this war. That is a constitutional duty of Congress.");
26. id. (statement of Prof. Stephen A. Saltzburg, Wallace and Beverley Woodbury University Professor of Law, The George Washington University Law School) ("[W]hile the courts have met their responsibilities [to assure that basic constitutional values are not lost in the executive's war on terror], Congress has provided the courts with no more guidance than it has provided the President. Congress has been silent too long.").
27. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. §1541 note (Supp. I 2001)).
28. Hamdi v. Rumsfeld, 542 U.S. 507, 535-36 (2004) ("In so holding [that a ditainee has due process rights], we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.").
29. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
30. Id. at 533, 539.
31. Rasul v. Bush, 542 U.S. 466 (2004).
32. Id. at 483-84.
33. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
34. Id. at 2792-93.
35. Id. at 2798;
36. see Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug, 12, 1949, 6 U.S.T. 3316, 3318-20, 75 U.N.T.S. 135, 136-38 [hereinafter Common Article 3].
37. Hamdan, 126 S. Ct. at 2796-98.
38. Common Article 3, supra note 30, 6 U.S.T. at 3318, 75 U.N.T.S. at 136.
39. Id.
40. MCA, Pub. L. No. 109-366, sec. 3(a)(1), §948b, 120 Stat. 2600, 2602 (2006) (to be codified in 10 U.S.C. §948b).
41. Walter Dellinger & Dahlia Lithwick, A Supreme Court Conversation, SLATE, June 29, 2006, http://www.slate.com/id/2144476/entry/ 2144825 ("Hamdan is simply the most important decision on presidential power and the rule of law ever.").
42. See Michael C. Dorf, Why the Military Commission Act Is No Moderate Compromise, FINDLAW, Oct. 11, 2006, http://writ.news.findlaw.com/dorf/20061011.html ("On nearly every issue, the MCA gives the White House everything it sought.").
43. MCA, sec, 3(a)(1), §949a(b)(1)(D), 120 Stat, at 2608.
44. Id. §950f, 120 Stat, at 2621.
45. Id. §950g, 120 Stat, at 2622.
46. See id. §950j(b), 120 Stat, at 2623-24. For an analysis of the background of the MCA
47. see Toobin, supra note 3, at 46-54.
48. See Jonathan Hafetz, No Blank Checks on Torture, NATION, Oct. 9, 2001, http://www. thenation.com/doc/20061023/hafetz ("Former Solicitor General Walter Dellinger described Hamdan as the Supreme Court's most important separation of powers decision ever. Perhaps, but therein lies the nub. By telling the President that he had exceeded the limits imposed by Congress, the Court left open the possibility that Congress would remove those limits.");
49. John Yoo, Congress to Courts: Get Out of the War on Terror, WALL ST. J., Oct. 19, 2006, at A18 (observing that the MCA "restores to the president command over the management of the war on terror. It directly reverses Hamdan").
50. MCA, sec. 3(a)(1), §950j(b), 120 Stat, at 2623-24.
51. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert, denied, 127 S. Ct. 1478 (2007), vacated and cert, granted, No. 06-1195, 2007 WL 1854132 (U.S. June 29, 2007).
52. Uniform Code of Military Justice, 10 U.S.C. §§801-946 (2000).
53. See Yoo, supra note 41.
54. U.S. CONST, art. I, §9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
55. On the habeas corpus question, see Hafetz, supra note 41;
56. David G. Savage, Law's Reach Extends to Jails in U.S., L.A. TIMES, Oct. 18, 2006, at A18.
57. Judge James Robertson, who originally granted conditional habeas relief to Hamdan, held, following the passage of the MCA, that Hamdan had no constitutional right to file a habeas corpus petition. Hamdan v. Rumsfeld, 464 F. Supp. 2d 9, 19 (D.D.C. 2006);
58. see also Jordan Paust, MCA Habeas Suspension and Hamdan, JURIST, Dec. 14, 2006 (arguing the day after the court's decision that the treaty obligations of the United States require access to courts).
59. President Bush has framed the battle against al Qaeda as a "struggle between freedom and terror." George W. Bush, President of the U.S., President's Radio Address (Aug. 19, 2006), available at http://www.whitehouse.gov/news/releases/2006/08/print/20060819.html. Others find that the manner in which the battle is fought is a threat to freedom.
60. See JAMES BOVARD, TERRORISM AND TYRANNY 349 (2003) ("For Bush, 'freedom' seems to be whatever extends his own political power. Whatever razes any barriers to executive power-that is 'freedom,' ").
61. MCA, Pub. L. No. 109-366, sec. 3(a)(1), §948b(f), 120 Stat. 2600, 2602 (2006) (to be codified in 10 U.S.C. §948b(f)).
62. I highlight some of the provisions of article 75 that might be most problematic: Article 75. Fundamental Guarantees.
63. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
64. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
65. (a) Violence to the life, health, or physical or mental well-being of persons, in particular:
66. (i) Murder;
67. (ii) Torture of all kinds, whether physical or mental;
68. (iii) Corporal punishment; and
69. (iv) Mutilation;
70. (b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; . . .
71. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
72. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
73. (a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
74. (b) No one shall be convicted of an offence except on the basis of individual penal responsibility;
75. (c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
76. (d) Anyone charged with an offence is presumed innocent until proved guilty according to law;
77. (e) Anyone charged with an offence shall have the right to be tried in his presence;
78. (f) No one shall be compelled to testify against himself or to confess guilt;
79. (g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
80. (h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
81. (i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
82. (j) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.
83. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.
84. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:
85. (a) Persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and
86. (b) Any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 75, June 8,1977,1125 U.N.T.S. 3, 37-38.
87. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2797 (2006).
88. United States v. Dion, 476 U.S. 734, 738 (1986) (citing Fong Yue Ting v. United States, 149 U.S. 698, 720 (1893)).
89. Mike Allen & Dana Priest, Report Discounts Iraqi Arms Threat, WASH. POST, Oct. 6, 2004, at Al;
90. George Edmonson, U.S. Search: No Trace of Iraq WMDs, ATLANTA J. CONST., Oct. 7, 2004, at Al;
91. Douglas Jehl, U.S. Report Finds Iraqis Eliminated Illicit Arms in 90's, N.Y. TIMES, Oct. 7, 2004, at A1.
92. See Anthony H. Cordesman, Cooking the Books on Iraq, L.A. TIMES, June 3, 2006, at B17 ("[T]he quarterly report to Congress issued May 30 by the Department of Defense, 'Measuring Stability and Security in Iraq,' like the weekly reports the State Department issues on Iraq, is profoundly flawed. It does more than simply spin the situation to provide false assurances to lawmakers and the public").
93. The American Bar Association has taken a lead. See Karen Mathis, Service Through the Rule of Law, ABAJOURNAL.COM, Oct. 9, 2006, http://www.abanet.org/journal/redesign/10pp. html.
94. See, e.g.. Democracy on the Nile, L.A. TIMES, Dec. 28, 2005, at B10 (quoting President Bush, who questioned Egpyt's commitment to "democracy, freedom and the rule of law" after the Egyptian courts convicted Ayman Nour for challenging Egyptian President Hosni Mubarak in a presidential election).
95. See J. Thomas Greene, The Rule of Law-Endangered?, 225 F.R.D. 29, 29 (2004) ("Thus, we have established in America a 'government of laws and not of men,' with no one above the law. The Rule of Law requires that government decisions be made in accordance with established law and rules, which are to be applied consistently and with equality for all.").
96. Soundness on Detainees, NAT'L REV., Oct. 23, 2006 ("Critics of the interrogation program can no longer lay it solely on President Bush's doorstep. Now it is just as much the program of Congress and of John McCain.").
97. See The World Justice Project, American Bar Association, Apr. 4, 2007, http://www. abanet.org/intlaw/spring07/ Business%20Law%20Reform%20in%20Emerging%20Markets%20Measuring%20 and%20Promoting%20Success%20in%20the%20Rule%20Of%20Law/Dumas% 20-%20The%20World%20Justice%20Project.pdf.
98. Professor Kim Lane Schepple identifies the German domestic security service, the Office for the Protection of the Constitution, as the institution with the best track record for fighting terrorism while simultaneously protecting civil liberties. Kim Lane Schepple, We Are All Post-9/11 Now, 75 FORDHAM L. REV. 607, 617-23 (2006). She opines that the Office's governing statute is preferable because it is "explicit and limited" in that it "provides the democratically determined guidelines for the institution, outlines a clear legal framework for the operation of intelligence gathering, and allows the public to recognize when and how intelligence gathering may occur."
99. Id. at 617.
100. See Walter Pincus, Specter Offers Compromise on NSA Surveillance, WASH. POST, June 9, 2006, at A4;
101. Scott Shane, Report Questions Legality of Briefings on Surveillance, N.Y. TIMES, Jan. 19, 2006, at A19;
102. Andrea Stone, List Describes 30 Briefings on NSA Work, USA TODAY, May 18, 2006, at 5A;
103. Karen Tumulty, Inside Bush's Secret Spy Net, TIME, May 22, 2006, at 32.
104. Even as a new Congress prepared to take over in 2007, Senator Jay Rockefeller said that more needed to be known about the secret program before Congress could legislate. Editorial, Unfinished Business, N.Y. TIMES, Dec. 17, 2006, at A11.
105. See Matthew Waxman, Principal Deputy Dir., Policy Planning Staff, U.S. Dep't of State, Opening Statement Before the U.N. Human Rights Comm., July 17, 2006, available at http:// www.state.gov/s/p/rem/69126.htm.
106. See Guy Dinmore, ICRC Chief Hits Out at Secret Prisons, FIN. TIMES (London), May 13, 2006, at 8.
107. See supra notes 28-30 and accompanying text.
108. The United Nations Committee Against Torture has condemned the Bush administration's practices of keeping prisoners incommunicado overseas and secretly transferring suspects for interrogation by other governments. Tim Golden, U.S. Should Close Prison in Cuba, U.N. Panel Says, N.Y. TIMES, May 20, 2006, at Al. When the Administration announced for the first time that it was holding and interrogating certain suspects in secret detention facilities, the response of the European Community was largely muted, with only Great Britain giving broad support to the United States.
109. Andrew Bounds et al., Red Cross to Get Access to Alleged AlQaeda Plotter, FIN. TIMES (London), Sept. 8, 2006, at 9.
110. There may be an amount of hypocrisy at work with respect to the reaction of certain European countries to reports of extraordinary rendition and secret prisons. "No European country has admitted allowing the CIA to run secret prisons on its territory. But [the European Parliament] said it had obtained records describing an 'informal' Dec. 7, 2005, meeting of foreign ministers from the European Union and NATO 'confirming that member states had knowledge' of the secret prisons. The meeting was attended by Rice and other U.S. officials, according to the report." Craig Whitlock, European Report Details Flights by CIA Aircraft, WASH. POST, Nov. 29, 2006, at A14;
111. see also David Gow, EU Members Urged to Admit to CIA Renditions, GUARDIAN (London), June 28, 2006, at 16 (noting that the justice commissioner for the European Union admitted that European territory had been used to facilitate extraordinary renditions);
112. Sean MacConnell, MEPs to Continue CIA Rendition Investigations, IRISH TIMES, June 14, 2006, at 13 (citing a report of an investigation into the role of European countries in the CIA's extraordinary rendition program, which accused certain European leaders as "turning a blind eye to what was happening");
113. Richard Norton Taylor & Nicholas Watt, MEPs Condemn Britain's Role in Torture Flights, GUARDIAN (London), Nov. 29, 2006, at 4 (reporting that the United States maintained a secret detention facility in Poland and that the British government had knowledge of the CIA's use of extraordinary rendition to deliver detainees to the facility);
114. Craig Whitlock, Testimony Helps Detail CIA's Post-9/11 Reach, WASH. POST. Dec. 16, 2006, at A1 (describing the cooperation of the Italian intelligence community with the CIA's extraordinary rendition program).
115. Canada has taken the allegations against its intelligence agencies seriously. See infra note 105 for a discussion of the abduction of Maher Arer. After apologizing publicly to Mr. Arar for Canada's role in the 2002 abduction, the head of the Royal Canadian Mounted Police ("RCMP") resigned in December 2006. Shortly thereafter, the government announced new inquiries into the cases of three other Canadian Muslims who had been imprisoned in Syria. In addition, a judicial commission recommended broad new oversight of the RCMP's intelligence arm. Doug Struck, Cases of Detained Muslims Tarnish Canadian Mounties' Noble Image, WASH. POST, Dec. 15, 2006, at A30.
116. See, e.g., Alan Cowell, British Role in U.S. Policy on Detainees Raises Storm, N.Y. TIMES, Jan. 20, 2006, at AlO (reporting on the demands by the British House of Commons to the Foreign Secretary for an explanation of Britain's role in the alleged American extraordinary rendition program);
117. Henry Porter, Into Harm's Way: By 'Rendering' Suspects to Torturers, America Sinks to the Moral Level of Saddam, OBSERVER (London), Dec. 11, 2005, at 29 ("What is the moral difference between Saddam's behavior and American renditions? There is none. For the dirty secret about torture is that it is not simply to gain unreliable information but that it is a weapon of punishment and extreme terror, which is deployed in exactly the same way by America as it was by Saddam.");
118. Robert Verkaik, What Is Extraordinary Rendition, and What Is Britain's Role in It?, INDEP. (London), June 8, 2006, at 33 (noting two objections to the argument that the goal of combating terrorism justifies the means of extraordinary rendition: (1) "torture is illegal under international conventions and specifically outlawed by laws enacted by individual states" and (2) "[intelligence obtained by torture is notoriously unreliable").
119. Martin Scheinin, the United Nations specialist on protecting human rights in the war on terror, has expressed concerns about the secret prisons and practice of extraordinary rendition. See Associated Press, UN Official: U.S. Terror Law May Violate International Treaties, INT'L HERALD TRIB. (France), Oct. 27, 2006, http://www.iht.com/ articles/ap/2006/10/27/news/UN_ GEN_UN_US_Terrorism_Law.php. Europeans have also expressed concerns about alleged "secret" CIA prisons for terrorists in some eastern European countries and the U.S. practice of rendition.
120. KRISTIN ARCHICK, CONG. RESEARCH SERV., THE UNITED STATES AND EUROPE: CURRENT ISSUES 2 (2006), available at http://fpc.state.gov/documents/organization/66453.pdf.
121. See Detention and Interrogation Policy Hearing, supra note 3, at 164 (statement of Sen. Ron Wyden) ("It seems to me the administration is on point when they say this is a war, and the people who are in Guantanamo Bay are not your garden-variety criminal defendants. These are dangerous people.");
122. see also Charles Lane, Bush Calls Draft on Tribunals 'Preliminary,' WASH. POST, Dec. 29, 2001, at A8 (reporting on the creation of antiterrorism military tribunals, which involved the balancing of protecting defendants and defending the country from attack).
123. At its meeting in February 2002, the House of Delegates of the ABA passed a resolution urging the President and Congress to assure that the law and regulations governing any military tribunal "[n]ot be applicable to cases in which violations of federal, state or territorial laws, as opposed to violations of such law of war, are alleged";
124. [r]equire that its procedures for trials and appeals be governed by the Uniform Code of Military Justice except Article 32 and provide the rights afforded in courtsmartial thereunder, including, but not limited to, provision for certiorari review by the Supreme Court of the United States (in addition to the right to petition for a writ of habeas corpus), the presumption of innocence, proof beyond a reasonable doubt, and unanimous verdicts in capital cases; and
125. [r]equire compliance with Articles 14 and 15(1) of the International Covenant on Civil and Political Rights, including, but not limited to, provisions regarding prompt notice of charges, representation by counsel of choice, adequate time and facilities to prepare the defense, confrontation and examination of witnesses, assistance of an interpreter, the privilege against self-incrimination, the prohibition of ex post facto application of law, and an independent and impartial tribunal, with the proceedings open to the public and press or, when proceedings may be validly closed to the public and press, trial observers, if available, who have appropriate security clearances.
126. American Bar Association House of Delegates, Daily Journal of 2002 Midyear Meeting, at 18 (Feb. 4-5, 2002), http://www.abanet.org/leadership/ 2002_dailyjournal.pdf (text of Report No. 8C).
127. With the MCA, Congress has guaranteed many of the rights supported by the ABA and has assured that proceedings will provide more protections to an accused than would have been provided pursuant to the President's 2001 Military Order Regarding Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001), reprinted in 10 U.S.C. §801 note (Supp. IV 2004). It is not certain whether the ABA regarded conspiracy as a valid war crime charge or would have supported conspiracy charges being brought in courts-martial or civilian proceedings.
128. See, e.g., United States v. Ross, 33 F.3d 1507, 1519-22 (11th Cir. 1994), cert, denied, 515 U.S. 1132 (1995).
129. United States v. Moussaoui, 282 F. Supp. 2d 480 (E.D. Va. 2003), aff'd in part, vacated in part, remanded by 365 F.3d 292 (4th Cir. 2004), reh'g granted, 382 F.3d 453 (4th Cir. 2004), cert, denied, 544 U.S. 931 (2005).
130. See Gail Gibson & Siobhan Gorman, Justices Limit Wartime Powers, BALT. SUN, June 30, 2006, at Al (citing Carl Tobias, a law professor at the University of Richmond, who said, following the Hamdan decision, that the Administration was likely reluctant to risk the kind of legal spectacle that accompanied the prosecution of Moussaoui). For an account of the antics conducted by Moussaoui during the trial
131. see also Dahlia Lithwick, Just Whose Show Is This Trial?, WASH. POST, Feb. 12, 2006, at B3
132. and John Riley, Moussaoui Defiant in Courtroom, NEWSDAY, Feb. 7, 2006, at A5.
133. Although the Moussaoui case involved some very difficult questions of law and a defendant who posed challenges for the trial judge, arguably it demonstrated that a seasoned judge can prevent the trial from turning into a circus.
134. See Joshua Berman, A Triumph for U.S. Justice: The Moussaoui Trial Easily Could Have Turned into a Circus, CHI. SUN TIMES, May 9, 2006, at 32.
135. For reporting on the Administration's proposal, see Congress OKs Detainee Plan, But It May End Up in Court, SEATTLE TIMES, Sept. 29,2006, at A1;
136. Demetri Sevastopulo, White House Caught in Tangled Web over Detention Regulations, FIN. TIMES, Sept. 13, 2006, at 8;
137. R. Jeffrey Smith, Many Rights in U.S. Legal System Absent in New Bill, WASH. POST, Sept. 29, 2006, at A13;
138. Carol J. Williams, Defender Says Detainees Should Be Able to Represent Themselves, L.A. TIMES, Apr. 8. 2006, at A19.
139. MCA, sec. 3(a)(1), §949a(b)(1)(D), Pub. L. No. 109-366, 120 Stat. 2600, 2608 (2006) (to be codified at 10 U.S.C, §949a(b)(1)(D)). The accused may forfeit the right of self-representation if he fails to "conform his deportment and the conduct of the defense to the rules of evidence, procedure, and decorum applicable to trials by military commission." Id. § 949a(b)(3)(A), (B), 120 Stat, at 2608-09.
140. The Supreme Court recognized when it held that the Sixth Amendment protected a defendant's right to self-representation in Faretta v. California, 422 U.S. 806 (1975), that "the right to self-representation is not a license to abuse the dignity of the courtroom."
141. Id. at 835 n.46. Faretta also indicates that a court may appoint standby counsel in the event that "termination of the defendant's self-representation is necessary."
142. Id.
143. One example of a court limiting the rights of self-represented defendants can be found in Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995) (en banc), where the court recognized that a defendant representing himself does not have an absolute right to cross-examine witnesses in a child sex abuse case. Military courts have reached similar decisions.
144. See, e.g., United States v. Bramel, 29 M.J. 958, 965 (A.C.M.R. 1990) ("Neither Congress nor the President have expressly mandated face-to-face confrontations between witnesses and an accused."). The Manual for Courts Martial, United States, R.C.M. 506(d) (2005), provides that an accused may lose the right of self-representation because of disruptive behavior or failure to follow rules of procedure or decorum.
145. Classified Information Procedures Act, 18 U.S.C. app. 3 §§1-16 (2000 & Supp. IV 2004).
146. See 2 STEPHEN A. SALTZBURQ, LEE D. SCHINASI & DAVID A. SCHLUETER, MILITARY RULES OF EVIDENCE MANUAL 5-52 to -70 (5th ed. 2003).
147. MCA, sec. 3(a)(1), §949a(b)(1)(A), 120 Stat, at 2608.
148. Congress took pain to protect sources and methods of intelligence gathering in the MCA. Id. §949d(d)(1)(A), (f)(2)(B), 120 Stat, at 2611-12.
149. We would have amended section 821, article 21 of the Uniform Code of Military Justice, 10 U.S.C. §821 (2000), as follows, with additions and deletion emphasized: Sec. 821. Art. 21. Military commissions and provost courts In time of war or pursuant to an authorization for the use of military force, the President may establish military commissions and provost courts consistent with international law, including the law of war. No case shall be tried by a military commission other than in the field unless the Attorney General certifies in writing to the Secretary of Defense, with copies of the certification filed with the Committees on Armed Services of the United States House of Representatives and Senate, that the charge or charges cannot be tried in a United States district court. The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions -; and provost courts, of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions; or provost courts.
150. See Geneva Convention Relative to the Treatment of Prisoners of
151. See David G. Savage, The Power of the President, L.A. TIMES, Feb. 6, 2006, at AlO ("In the controversies over the use of torture, the detention of 'enemy combatants' and wiretapping in the United States, [President Bush] and his lawyers have maintained the commander in chief has an 'inherent authority' to act regardless of the law.").
152. David E. Sanger, In Address, Bush Says He Ordered Domestic Spying, N.Y. TIMES, Dec. 18, 2005, at Al (quoting President Bush as saying that he authorized domestic wiretapping because the United States had failed to detect communications that might have tipped authorities off to the Sept. 11 attack plot). The Vice President has claimed that "[t]his is a matter entirely outside the competency of the judiciary."
153. Michael Abramowitz & Spencer S. Hsu, Cheney Rejects Idea of Iraq Withdrawal, WASH. POST, Nov. 18, 2006, at A4. The evidence now seems to support the conclusion that the President backed away from his claim to have inherent power to engage in whatever surveillance he deemed necessary when senior Justice Department officials threatened to resign.
154. Dan Eggen & Paul Kane, Gonzales Hospital Episode Detailed, WASH. POST, May 16, 2007, at Al.
155. See Jane Mayer, The Hidden Power, NEW YORKER, July 3, 2006, at 44-55. Mayer writes: Bruce Fein, a Republican legal activist, who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department, said that [Vice President Cheney's Chief of Staff David] Addington and other Presidential legal advisers had staked out powers that are a universe beyond any other Administration. This President has made claims that are really quite alarming. He's said that there are no restraints on his ability, as he sees it, to collect intelligence, to open mail, to commit torture, and to use electronic surveillance. If you used the President's reasoning, you could shut down Congress for leaking too much. His war powers allow him to declare anyone an illegal combatant. All the world's a battlefield - according to this view, he could kill someone in Lafayette Park if he wants It's got the sense of Louis XIV: T am the State.'
156. Id. at 45.
157. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act") §218, 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B) (2000 & Supp. V 2005) (allowing applications to the Foreign Intelligence Surveillance Court ("FISC") for eavesdropping orders where foreign intelligence was "a significant purpose" of the surveillance). Law enforcement could also be a purpose, even the predominant purpose. The Attorney General made this clear in guidelines adopted after the statute was enacted, Memorandum from John Ashcroft, Att'y Gen. of the U.S., to the Director of the FBI et al., Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI (Mar. 6, 2002), available at http://www.fas.org/ irp/agency/doj/fisa/ag030602.html;
158. see also Bob Egelko, Expanded Wiretaps OKd, S.F. CHRON., Nov. 19, 2002, at A1.
159. The FISC, which ordinarily operated in secret, published an opinion in response to the guidelines and sought to maintain a wall between intelligence gathering and law enforcement. In re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F, Supp. 2d 611, 621, 625 (FISA Ct. 2002). The government filed the first appeal from a FISC ruling in history, and a three-judge appellate court appointed by Chief Justice Rehnquist issued an opinion holding that the FOREIGN INTELLIGENCE SURVEILLANCE ACT of 1978, Pub. L. 95-511, 92 Stat. 1783, was never meant to apply only to foreign intelligence information relating to national security. In re Sealed Case, 310 F.3d 717, 735 (FISA Ct. Rev. 2002). The court ruled that the primary purpose of an investigation could be a criminal investigation provided that the government entertains a realistic option of dealing with a foreign agent other than through a criminal prosecution.
160. Id. Even before the USA PATRIOT Act and the decision of the appellate court, civil liberties groups had expressed increasing alarm at the rising number of government applications to the FISC.
161. William Carlsen, Secretive U.S. Court May Add to Power, S.F. CHRON., Oct. 6, 2001, at A4.
162. Foreign Intelligence Surveillance Act of 1978, Pub. L. 95-511, 92 Stat. 1783 (codified in scattered sections of 50 U.S.C).
163. For an example of this argument, see Andrew C McCarthy, Checked and Unbalanced, NAT'L REV. ONLINE, Feb, 16, 2006, http://www.nationalreview.com/mccarthy/mccarthy2006 02161544.asp ("Furthermore, the 'necessary and proper' clause sheds exactly no light on the current [NSA] controversy.... Nor does it mean the president is bound to honor congressional enactments (such as the Foreign Intelligence Surveillance Act (FISA)) to the extent their operation would constrain his inherent authority-a position supported historically by administrations of both parties because of the elementary proposition that a statute cannot trump the Constitution.").
164. With respect to secret wiretapping, President Bush stated, "There's no doubt in my mind it is legal." Eric Lichtblau & Adam Liptak, Bush and His Senior Aides Press on in Legal Defense for Wiretapping Program. N.Y. TIMES, Jan. 28, 2006, at A13. President Bush also said that he believed there were limits on executive power even in wartime, including a limit on ordering torture.
165. Id.
166. Prior to passage of the DTA and the MCA, the argument could be made that although "[i]t's true that the Bush administration, like its predecessors in wartime, has pressed for sweeping increases in executive authority, based on the novel argument that the president has unilateral power to detain and investigate American citizens and alien residents without oversight from Congress or the Courts . . . the more surprising development is that the courts and Congress, unlike their predecessors in wartime, are rejecting the president's most extreme claims." Jeffrey Rosen, Liberty Wins-So Far, WASH. POST, Sept. 15, 2002, at B1.
167. See Memorandum from Jay S. Bybee, Ass't Att'y Gen., to Alberto R. Gonzales, Counsel to the President, Standards for Interrogation Under 18 U.S.C. §§2340-2340A, at 1 (Aug. 1, 2002), available at http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB127/02.08.01.pdf. In the memo, the Justice Department "conclude[d] that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." As for mental pain, to be torture, the resulting psychological harm had to be of a nature "lasting for months or even years."
168. Id.
169. White House Counsel Alberto R. Gonzales, who became Attorney General, claimed that President Bush never considered the aggressive options set out in the August 1, 2002 memo on torture. The Justice Department disavowed the memo on June 22, 2004. Richard W. Stevenson, White House Says Prisoner Policy Set Humane Tone, N.Y. TIMES, June 23, 2004, at A1. A "senior" Justice Department official said that the August 2002 memorandum was "overbroad and irrelevant" and was unnecessary since no one in the Administration ever asked for legal authority to engage in torture.
170. Id. at A2. But there is evidence that the memorandum provided a rationale for using torture to extract information from al Qaeda operatives.
171. See Neil A. Lewis, Documents Build a Case for Working Outside the Laws on Interrogating Prisoners, N.Y. TIMES, June 9, 2004, at A8;
172. R. Jeffrey Smith, Slim Legal Grounds for Torture Memos, WASH. POST, July 4, 2004, at A12. Some have questioned whether the memos would have been written if no one in authority had indicated a desire to lower the bar on torture.
173. See, e.g., H.D.S. Greenway. Who's to Blame for the Torture, BOSTON GLOBE, June 25, 2004, at A23.
174. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.
175. One way is to claim that the President is not bound by laws and treaties prohibiting torture and has inherent constitutional authority to disregard these laws and treaties. That was a conclusion of the August 2002 memorandum. That memorandum did not stand alone. The Office of Legal Counsel in the Department of Justice has taken a sweeping view of presidential power. See Jack M. Balkin & Sanford Levinson, The Rehnquist Court and Beyond: Revolution, Counter-Revolution, or Mere Chastening of Constitutional Aspirations? The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489, 498-99 (2006).
176. There is some confusion over whether the Attorney General, John Ashcroft, even approved the memorandum before it was sent to the White House. Adam Liptak, Author of '02 Memo on Torture: 'Gentle' Soul for a Harsh Topic, N.Y. TIMES, June 24, 2004, at Al ("Justice Department officials said that the memo had been sent directly from the Legal Counsel's office to the White House and that they did not believe it had required the approval beforehand of Attorney General John Ashcroft or his chief deputy at the time.").
177. John Diamond, Senate Votes to Ban Torture of Terrorism Detainees, USA TODAY, Nov. 16, 2005, at 8A.
178. Editorial, Tortured Agreement, NEWSDAY, Dec. 21, 2005, at A38 ("The issue of torture has been left in an ethical and operational limbo, perhaps unavoidable in the age of terror.").
179. President Bush even threatened to shut down the CIA program unless Congress gave the agency latitude in interrogating detainees. Ron Hutcheson, Bush Insists Interrogators Need Latitude, SEATTLE TIMES, Sept. 16, 2006, at A6.
180. It appears that the Bush administration believes that Congress has not attempted to interfere with the President's inherent constitutional authority to protect the American people and that such authority includes the power to approve interrogation techniques that might be regarded by some as cruel or inhumane. See Jonathan S. Landay, VP Confirms Use of Waterboarding, CHI. TRIB., Oct. 27, 2006, at 5.
181. See, e.g., Dan Eggen, Cheney's Remarks Fuel Torture Debate; Critics Say He Backed Waterboarding, WASH. POST, Oct. 27, 2006, at A9 ("Vice President Cheney said this week that dunking terrorism suspects in water during questioning was a 'no-brainer,' prompting complaints from human rights advocates that he was endorsing the use of a controversial technique known as waterboarding on prisoners held by the United States."). Not only is waterboarding considered a clear example of torture by many human rights and military lawyers, but it has been employed by such outlaw regimes as the Khmer Rouge.
182. Id. Additionally, "[i]n 1947, the United States prosecuted a Japanese soldier for war crimes and sentenced him to 15 years hard labor for using the technique on a U.S. prisoner."
183. Id. Senators responsible for the DTA believe that they prohibited the use of waterboarding in the legislation.
184. See Jonathan S. Landay, Cheney Confirms that Detainees Were Subjected to Water-Boarding, MCCLATCHEY NEWSPAPERS, Oct. 25, 2006, http://www.realcities.com/mld/krwashington/ 15847918.htm;
185. see also Dorf, supra note 36 ("[T]he Administration and many of its allies in Congress refuse even to say whether they think that the MCA prohibits future waterboarding.");
186. Hafetz, supra note 41;
187. Lisa Trei, Military Commissions Act a 'Poisoned Chalice, ' Scholar Warns During Symposium, STAN. REP., Oct. 25, 2006, http://news-service.stanford.edu/news/2006/october25/human-102506.html (quoting Associate Professor of Law at Stanford Law School, Jenny Martinez, as claiming that use of techniques like waterboarding is permissible at the President's discretion following the passage of the MCA).
188. Press reports indicate that the CIA stopped interrogating detainees because of a concern about the legality of interrogations. Andrew Balls, CIA Suspends Use of "Enhanced Techniques" for Interrogation, FIN. TIMES (London), June 28, 2004, at 7.
189. The Iraq Study Group Report cast some doubt on the accuracy of information concerning violence in Iraq. For example, recommendation 78 of the Group is as follows: "The Director of National Intelligence and the Secretary of Defense should also institute immediate changes in the collection of data about violence and the sources of violence in Iraq to provide a more accurate picture of events on the ground." JAMES A. BAKER III ET AL., THE IRAQ STUDY GROUP REPORT 95 (2006).
190. George W. Bush, U.S. President, President Discusses Creation of Military Commissions to Try Suspected Terrorists (Sept. 6, 2006), http://www.whitehouse. gov/news/releases/2006/09/ 20060906-3.html ("1 want to be absolutely clear with our people and the world: The United States does not torture. It's against our laws, and it's against our values. I have not authorized it - and I will not authorize it.").
191. Condoleezza Rice, U.S. Sec'y of State, Press Conference at NATO Headquarters, Brussels, Belgium (Dec. 8, 2005), transcript available at http://www.state.gov/secretary/rm/2005/ 57805.htm; see also Interview on Deutsche Welle Capital Cities Program with Kurt Volker, Principal Dep'y Ass't Sec'y for European & Eurasian Affairs (Sept. 10, 2006), transcript available at http://www.state.gov/p/eur/rls/rm/73261.htm ("First off, the United States does not torture people. We don't condone torture; we don't transport people to other countries where we think they might be tortured. It's a matter of law; it's a matter of the U.S. Army Field Manual; it's a matter of policy, and the administration and we are very serious about that.").
192. Maher Arar was born in Syria and naturalized in Canada. He had not returned to Syria since becoming a Canadian citizen. A State Department spokesperson described the U.S. action as follows: "He was-my understanding, and this happened I think back in 2002-my understanding of this is that he was at the time-U.S. officials made a determination that he posed based on the information that they had that he posed the threat, so he was removed from the United States to a country of his citizenship, Syria. That was done after there were assurances that his treatment would meet the standards of the Geneva Conventions, meaning that in the sense that he was not going to be maltreated. We had to have a reasonable expectation that he was not going to be tortured or maltreated. We were able to assure ourselves of that." Sean McCormack, Spokesman, U.S. Dep't of State, Daily Press Briefing (Sept. 29, 2006), available at http://www.state.gov/r/pa/prs/dpb/2006/73375.htm. For an examination of the CIA's program, including a detailed account of Arar's rendition, see generally STEPHEN GREY, GHOST PLANE: THE TRUE STORY OF THE CIA TORTURE PROGRAM (2006).
193. Arar's transfer to Syria created a scandal in Canada. The head of the Royal Canadian Mounted Police resigned in December 2006 after a two-year judicial inquiry found his officers gave U.S. agents false information to cast suspicion on Arar. Although the Canadian Parliament apologized to Arar and the Canadian government prepared a compensation package for him, the United States has never acknowledged any mistake or wrongdoing with respect to him, and United States Ambassador to Canada, David Wilkins, has observed that Arar remains on a United States "watch list" which means he might again be detained by the United States if he were to enter the country. Doug Struck, Tortured Canadian Still on U.S. 'Watch List,' WASH. POST, Dec. 16, 2006, at A16.
194. For an account of Arar's treatment, taken from a complaint that he filed against the government in federal court, see Arar v. Ashcroft, 414 F. Supp. 2d 250, 252-57 (E.D.N.Y. 2006) (granting motion to dismiss suit brought under Torture Victim Protection Act of 1991, Pub. L. 102-256, 106 Stat. 73 (1992), because officials were not acting under color of foreign law). In a letter from Attorney General Alberto M. Gonzales and Secretary of Homeland Security Michael Chertoff to the Canadian Minister of Public Safety, dated January 16, 2007 and released on January 22, 2007
195. "Mr. Gonzales and Mr. Chertoff said their departments and American intelligence agencies 'have re-examined the materials in the possession of the United States regarding Mr. Arar. Based on this re-examination, we remain of the view that the continued watch listing of Mr. Arar is appropriate.'" Scott Shane, Canadian to Remain on U.S. Terrorist Watch List, N.Y. TIMES, Jan. 23, 2007, at All. Canada has agreed to pay Mr. Arar $9.75 million in a settlement.
196. Ian Austin, Canada to Pay $9.75 Million to Man Sent to Syria and Tortured, N.Y. TIMES, Jan. 27, 2007, at A5. Some Canadians believe that the United States owes Mr. Arar considerably more compensation.
197. Editorial, The Compensation Canada Owes Arar, GLOBE & MAIL (Toronto), Jan. 26, 2007 at A14 ("Canada was not directly complicit in torture. It did not seek Mr. Arar's deportation (the United States did that on its own, and owes Mr. Arar far more than Canada does).").
198. Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, Country Reports on Human Rights Practices - 2005 (2006), http://www.state.gOv/g/ drl/rls/hrrpt/2005/61699.htm ("The government maintained effective control of the security forces, and members of the security forces committed numerous, serious human rights abuses.").
199. See Interview on NBC's Meet the Press by Tim Russert with Condoleezza Rice, U.S. Sec'y of State (Aug. 6, 2006), transcript available at http://www.state.gov/secretary/rm/2006/ 70014.htm.
200. Learned Hand warned long ago of the limited role courts ultimately play in assuring liberty. "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." Learned Hand, The Spirit of Liberty, Remarks in Central Park During "I Am an American Day" Ceremony (May 21, 1944), in THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED HAND 189-91 (Irving Dillard ed., 2d ed. 1953). More recently, Professor Bruce Ackerman wrote that "[t]he courts have not protected us sufficiently in the past, and they will not do better in the future."
201. Ackerman, supra note 1, at 475.
202. "[S]omething ... we have learned along the way is that the real antidote to global terrorism in the long run is advancing the human condition: freedom, economic opportunity and prosperity, social integration, democracy, human rights, the rule of law, security." Kurt Volker, Principal Dep'y Ass't Sec'y of State for European & Eurasian Affairs, Transatlantic Values After September 11, Address Before the Netherlands Atlantic Association (Sept. 12, 2006), available at http://www.state.gov/p/eur/rls/rm/72137.htm.