Maurice A. Deane Distinguished Professor of Constitutional Law. Since 2002 Professor Freedman has served as a consultant to numerous legal teams involved in challenges to the government’s post 9/11 detention policies.
The criminal law paradigm is now, and has been from the beginning, the right one to apply to the fight against terrorism.
The decision whether to respond to the events of 9/11 within a war or a criminal framework was from the first day a policy choice. If President Bush had been competently advised by the White House Counsel, Alberto Gonzales, he would have been told so and further told that either decision would implicate legal restraints. What actually happened, according to the President, was simpler: "I didn’t need any legal briefs, I didn’t need any consultations, I knew we were at war."1 And his counsel accepted that statement as though it were a description of objective empirical reality rather than a political determination.
Suppose instead the President had said on September 12, 2001:
My friends, a terrible crime has been committed on our soil. To the extent that a government sent infiltrators here, we will deal with that government by wiping it out. But to the extent that a small group of murderers thinks it can disrupt our institutions and cause us to abandon our core values, we will show the world the contrary. We will capture them wherever in the world they are. We will give them a fair trial, which we will invite Al Jazeera to broadcast, just as we did when our embassies in Africa were blown up. And we will let the world judge whose sort of government it would rather live under.
Indeed, in a criminal trial replete with due process, an excellent defense team, and protection of the government’s security needs, an openly selected jury in a public trial convicted the embassy bombers but refused to sentence them to death on the grounds that doing so would create martyrs. As a result, those defendants —like the Blind Sheik, the people accused of planning to bomb tunnels and bridges in New York, and those who bombed the World Trade Center in 1993 — are serving long sentences and are forgotten.
John Yoo might concede this point but would likely argue that the criminal process functions to adjudicate past events, not to deal with ongoing threats that have to be stopped. In fact, however, law enforcement authorities frequently act to forestall future activities. The available tools include, to take just a few examples, arresting people for conspiracy, detaining them for immigration violations, and holding them as material witnesses while collecting information.
To be sure, since an arrested defendant has the right to remain silent the government cannot require him to provide information, with or without the use of coercion. But then again, the overwhelming outcome of all criminal cases is a plea bargain—as in the John Walker Lindh case—and in a plea bargain the defendant has every incentive to voluntarily provide accurate information.
That’s just not good enough, responds James Comey, the U.S. Attorney who handled the case of Jose Padilla and later served near the top of the Justice Department. We were very sure that Padilla was bent on blowing up buildings, but—take your choice—we either "could not use the evidence because of the sources and methods that generated it,"2 or our evidence was "clear and convincing," but maybe not "beyond reasonable doubt." Simply stated, we in the executive branch decided that we wished to be free of legal constraints limiting our power to imprison citizens and therefore unilaterally declared ourselves exempt from judicial review of our decisions.
If Dr. Wen Ho Lee — who was said to have "links" to China and whose dealings with the secrets of the hydrogen bomb allegedly posed a risk of blowing up the planet — had been designated "an enemy combatant" he would still be imprisoned today.
Certitude is not the test of certainty. Governments are sometimes mistaken. That may be through tyrannical malice or it may be through incompetence, as in the case of Brandon Mayfield who was wrongly connected to the Madrid train bombings. Or it may be through a commendable desire on the part of executive officials to err on the side of caution. Whatever explanation you like, one purpose of due process is to ensure simple accuracy.
Facing some shadowy international plot against the country, it is important for all concerned to get the facts straight. And, contrary to the idea that "on 9/11 everything changed," there is nothing in the least bit new about this. There was a real Gunpowder Plot in 1605 to blow up the Houses of Parliament but in an effort to demonstrate links to Spain many people were tortured and ultimately wrongly executed – thereby weakening rather than strengthening the political institutions of England. Nor do we need to look deep into the past to know that even when due process protections do apply, the legal system is fallible: there have been 124 exonerations of Death Row inmates since 1973.
Limit the power of our executive officials is not a bug; it is a product feature. The difference between a government that acts on what it "knows" and a government that is required to prove its charges in adversarial proceedings before a neutral tribunal is the difference between a government of laws and a police state. And lawyers who fight to enforce this difference are not engaged in "lawfare" but in promoting the precise values for which the United States armed forces should be fighting when they go to war in the name of the American people.
Does constraining Executive action involve risks? Of course it does. So does allowing Nazis to march in Skokie. If the Nazis ever gained office they would abolish free speech. But we take that risk consciously. In a land of free speech Nazis are much less likely to come to power. Conversely, to allow the government to suppress them in order to guard against that risk is both to sacrifice the vibrancy of discussion on which we stake our hopes of a better future and to hand our enemies a pre emptive victory by becoming like them in order to defeat them.
As he was leaving office in December 2006, Donald Rumsfeld said,
I don’t think I would have called it the ‘war on terror.’ . . . I’ve worked to reduce the extent to which that [label] is used and increased the extent to which we understand it more as a . . . conflict . . . against a relatively small number of terribly dangerous and violent extremists. 3
That’s the correct definition of the problem, because it leads to solutions that call upon this country’s greatest strength.
That strength is not our military strength. Secretary Rumsfeld ultimately figured out that the United States armed forces simply cannot occupy every inch of the globe. In fact, at this moment those forces are stretched perilously thin. To defeat ideologies opposed to ours we will have to win the hearts and minds of people around the world. That requires demonstrating in deed adherence to our professed ideals. The Executive’s insistence on arrogating unlimited power has squandered what is in fact America’s greatest strength: the moral force that comes from being an example to the world, a country that others justifiably want to emulate, one confident enough in its own values that its President wears his amenability to the rule of law as a republican crown rather than casting it aside in times of stress.
Today, a young person in an authoritarian nation who were asked to compare the behavior of her government in addressing perceived security threats with that of ours might well answer—accurately and tragically—that there is not much difference. That is by far the greatest long term damage that has been done to the interests of the United States by the terrorism policies of the current administration.
The strongest blow that could be struck against ideologies opposed to ours would be the recovery of our commitment to the rule of law. The preservation of its safeguards is a powerful weapon against our enemies and an inspiration to our friends. The right way, as well as the genuinely American way, to deal with "a relatively small number of terribly dangerous and violent extremists" is to prosecute them.