Homeland Security and the Rule of Law: Methodology and Myth

Transcription

1 Remarks by Dick Thornburgh, Former Attorney General of the United States, to The Dickinson School of Law Chapter of the Federalist Society at Pennsylvania State University Dick Thornburgh (202) K&L Gates comprises approximately 1,700 lawyers in 28 offices located in North America, Europe and Asia, and represents capital markets participants, entrepreneurs, growth and middle market companies, leading FORTUNE 100 and FTSE 100 global corporations and public sector entities. For more information, visit The rule of law today is under enormous stress worldwide and is indeed a subject of considerable concern within our own borders. Threats to this cardinal principle underlying our democracy deserve our constant attention, lest we fall prey to the threat of disorder and chaos which afflicts so many areas of our world in this 21st century. The rule of law is the linchpin in efforts to promote democracy and human rights around the world and we dare not overlook its significance in the effort to harmonize differences and promote social and economic growth worldwide as well as in our United States. Our world was changed completely by the events of September 11, On that date, the ramparts of our fortress America were breached, not by an invading army or by an alien enemy air armada, but by fanatic terrorists with no regard for innocent human life, or indeed for their own. Their cowardly attacks that day on New York, Washington and in the fields of Central Pennsylvania took the lives of some 3,000 innocent persons, most of them going about their ordinary pursuits on that fateful day. This dreadful assault on our country has obliged us to rethink many of our basic assumptions about national defense and homeland security. We are now forced to confront threats totally unlike those we have had to face in times past. But this nation and our people have proved equal to the challenges of the past and we have no reason to suspect that we will be tried and found wanting in responding now. In devising a strategy for responding to these threats, one of the first considerations we have had to deal with is the preservation of our own treasured rights and liberties. Today, the United States continue to stand throughout the world as the prime exemplar of the rule of law and of a democratic political system. We are the envy of many other nations and their peoples for characteristics which, frankly, we all too often take for granted. What we enjoy in our nation is looked on with covetous eyes by many of the world s people -- especially those still living under despotic rulers, fearful of the knock on the door at night, unable to speak out against injustice, mired in poverty and laboring within backward economies which are often corrupted by their leaders. Worst of all, too many of the world s peoples today are denied any means to peaceably effect necessary changes in their political and governmental systems. True, we must take note of the fact that, in times of stress, our constitutional principles can be severely tested. The effort to balance national security and individual liberty inevitably produces tension. The late Chief Justice Rehnquist once noted: in wartime, reason and history both suggest that [the balance between freedom and order] shifts to some degree in favor of order -- in favor of the government s ability to deal with conditions that threaten the national well-being. And sometimes that shift runs to excess. History reminds us of the late 18th century Alien and Sedition Acts which posed a genuine threat to freedom of speech and association in the early days of our republic. During the Civil War, even our most revered president, Abraham Lincoln, it must be remembered, felt obliged to suspend the ancient writ of habeas corpus, a move many scholars today view as unconstitutional. Following the end of World War I, the infamous Palmer raids scooped up hundreds

2 of aliens in dragnets directed at so-called radicals. And, during World War II, Japanese- American citizens were taken from their homes and confined for the duration of hostilities for no reason other than their ethnic background, surely one of the most shameful episodes in U.S. history. So we must always be on the lookout for overreaction in times of war or national emergency, when law enforcement or our intelligence agencies may be tempted to push the envelope of constitutionality too far in defense of our nation. Care must be exercised lest they cross the line into violation of our civil rights and civil liberties. I. Today there is, I perceive, a broad consensus in our nation about the need to fully empower those to whom we have assigned the task of fighting terrorism on our shores. Yet, we as a people have a strong tradition of fearing centralized, secret police power. This view is reflected in the National Security Act of 1947 that created the Central Intelligence Agency but expressly forbade the CIA from having law enforcement authority. Memories of the Nazi Gestapo were still very fresh in our minds in Even seven years after the tragic events of September 11, 2001, we continue to face the need to develop new techniques to deal with the threat of terrorist activities. The American people rightly will not accept a government that fails to connect the dots. It is unacceptable that one federal agency with information about, for example, terrorists planned use of weapons of mass destruction should be prevented by law from sharing that information with another agency that might be lacking that very piece of the puzzle needed to thwart the terrorists plan. Important distinctions must be made between the roles respectively, of law enforcement and intelligence gathering in the effort to protect our citizenry and our institutions from the menace of terrorism. Law enforcement seeks legally admissible evidence to prove a specific criminal offense in court before a judge and jury; Intelligence gatherers, on the other hand, seek enough information, whether legally admissible or not, to thwart planned terrorist attacks. And these are not the same. One is designed to punish those who have committed terrorist attacks after the fact; the other is designed to prevent terrorist attacks before the fact. This is one of the principal reasons why cooperation between the FBI and the CIA or other intelligence agencies has sometimes been less than ideal in the past. Grand jury testimony and information obtained from court-authorized FBI wiretaps often could not legally be passed on by law enforcement for use by the intelligence community. By the same token, intelligence information often could not be transmitted for use by law enforcement for fear of compromising the sources and methods by which it was obtained, i.e., by jeopardizing the lives of under-cover operatives or cooperating witnesses or by disclosing highly sophisticated electronic surveillance techniques in criminal trials held in open court. Particularly in the wake of September 11, however, the American public would be understandably outraged if told that the information in the files of one government agency was not being fully shared with other agencies when the stakes are as high as they inevitably are in both the prevention and prosecution of terrorist activities. So the law was changed. In the fall of 2001, the Congress by overwhelming margins passed the USA Patriot Act, which sought to remove some of the barriers to full cooperation. These changes may still not prevent some very evil people from escaping actual prosecution sometime in the future. Legally admissible evidence may not, in fact be available to convict them. But the changes will certainly heighten the prospects of thwarting terrorist designs and preventing potential widespread harm and destruction. And I am confident that our criminal justice process can reconcile the need for enhanced homeland security and the observance of our basic constitutional rights and liberties. After all, as United States Supreme Court Justice Robert Jackson once observed, our bill of rights is not a suicide pact. 2

3 II. The task is a formidable one. Particularly since not all our laws are accessible to the lay person. Take, for example, Section 104 of the USA PATRIOT Act. That section states, in its entirety: Section 2332e of title 18, United States Code, is amended (1) by striking 2332c and inserting 2332a ; and (2) by striking chemical. Without access to the existing statute, a reader cannot tell that the old law permitted the Attorney General to ask the Secretary of Defense for assistance in the event of a chemical attack whereas the new law applies to any weapon of mass destruction attack. The USA PATRIOT does not read like a novel. To understand it, a reader must have the Act in one hand and all the laws it amended in the other. With 158 sections in ten titles as diverse as providing monetary benefits to survivors of terrorist attacks to changing the statute of limitations for terrorism related offenses, the Act and its counterparts are not an easy read and they have given rise to various myths and misunderstandings. Let me deal with just a handful. Myth Number One: Time and again in the media I hear it said that the Foreign Intelligence Surveillance Act (FISA) is unconstitutional because it does not require probable cause and is an attempt to circumvent the Fourth Amendment itself. This simply is not true The FISA statute itself states plainly that before the Court may issue an order authorizing electronic surveillance, it must first find and I quote -- on the basis of the facts submitted by the applicant there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power ; and each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; Indeed, even the most recent additions to FISA enacted just this past summer, which extended the FISA Court s reach to the targeting for electronic surveillance purposes of United States persons outside of the United States require the court to find that there is probable cause to believe that the target is a person reasonably believed to be located outside the United States; and a foreign power, an agent of a foreign power, or an officer or employee of a foreign power. The Supreme Court has never reached the issue, but every Court of Appeals to consider the matter to date has found FISA s procedures authorizing electronic surveillance to be constitutional. The Foreign Intelligence Surveillance Court of Review examined FISA after the statute was amended by the USA PATRIOT Act and concluded in no uncertain terms: FISA as amended is constitutional because the surveillances it authorizes are reasonable. That is, after all, what the Fourth Amendment emphatically requires: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Myth Number Two: The Military Commissions Act of 2006 (MCA), passed by Congress and signed into law by President Bush in 2006 creates a system of Kangaroo Courts. Not so. The Commissions may be used to try only alien, unlawful combatants. The MCA requires that an accused be given notice of the charges and specifications against him and be permitted to: present evidence in his defense; cross-examine the witnesses who testify against him; examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing; be present at all sessions of the military commission (other than those for deliberations or voting), except when the accused persists in conduct that endangers the physical safety of individuals or disrupts the proceedings; 3

4 receive the assistance of counsel, both military and civilian; and represent himself, if he so chooses. Moreover, the MCA explicitly states, [n]o person shall be required to testify against himself at a proceeding of a military commission, and that [a] statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made. The MCA does not permit the use of secret evidence that the defendant and his attorneys are not permitted to see. All of these provisions are entirely consistent with the rights granted our own citizens in the federal district courts. The variances from our civilian criminal courts found in the MCA are, I submit, reasonable accommodations to the circumstances of warfare. For example, the MCA requires that the traditional rules of evidence apply so far as practicable or consistent with military or intelligence activities. The exception to the traditional rules is that the MCA permits introduction of hearsay evidence if, but only if, adequate notice is given to the opposing party and that party fails to establish that the evidence is unreliable or lacking in probative value. In any event, no evidence is admissible the probative value of which is substantially outweighed by the danger of unfair prejudice. Even in our civilian criminal courts, hearsay is generally only excluded if it does not meet any of a long list of exceptions and if it is presented to a civilian jury. Federal Rule of Evidence 1101 makes the rules inapplicable to preliminary questions of fact, grand jury proceedings and miscellaneous proceedings such as sentencings, bail hearings, suppression hearings and similar matters that are normally tried before judges without a jury. In many instances, it simply would be impractical or impossible to make available to testify personally in protracted court proceedings military or intelligence officers who are in combat on the other side of the world. Myth Number Three: The MCA is deficient in that it does not provide for alien unlawful enemy combatants to be tried by a jury of their peers. Although different from the practice in U.S. civilian courts, this is not unusual in the world at large. The various international courts such as the International Court for the Former Yugoslavia or the International Court for Rwanda also use the commission system, rather than attempt to locate a lay jury of the defendant s peers. Juries are not the norm in those nations which follow the civil law system, which is a large part of even the Western Democracies. Myth Number Four: The military commissions do not have an exclusionary rule to prevent the introduction of otherwise reliable evidence on the grounds that the evidence was not seized pursuant to a search warrant or other authorization. True, but the exclusionary rule is designed to deter police misconduct. In the case of military commissions, the evidence is often gathered by soldiers who cannot be expected to be trained in evidence collection. Indeed, U.S. courts are not even authorized to issue search warrants for places outside of the United States. As the Supreme Court has stated: [T]he purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory. Rather, the standard for admissibility is this: Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person. This is wholly a truth-seeking standard, without any trade-offs to serve other societal values such as deterring police misconduct. Myth Number Five: The MCA exempts its proceedings from the speedy trial provisions of the Uniform Code of Military Justice. True again, but this, too, makes sense in context. Many of the unlawful enemy combatants held by the military were arrested in order to obtain intelligence, and they are not detained as a result of the pendency of proceedings before the military commissions. As Justice O Connor noted in the Hamdi case: The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by universal agreement and practice, are important incident[s] of war, and the United States may detain 4

5 such people separate and apart from trials by military commissions for the duration of the relevant conflict. Myth Number Six: The MCA does not always require a unanimous vote for conviction. Again true, but it does require the commission to have at least twelve members and that they be unanimous as to both guilt and sentence before imposing a death penalty. The use of secret military tribunals to try those charged as unlawful combatants is a procedure first approved by our Supreme Court in the 1942 Ex Parte Quirin case involving World War II Nazi saboteurs. Such tribunals must be available as an option where sensitive intelligence information might be disclosed in a trial in open court or where it is deemed wise to avoid providing a public platform for terrorists to spew their messages of hatred and extremism. Such a tribunal might well be appropriate, for example, for the trial of Osama bin Laden himself if and when he is finally brought to justice. Myth Number Seven: Is not a myth at all, but a shocking reminder of a lingering deficiency in our system of justice. There is, in fact, no crime of terrorism triable in our federal criminal courts. In 1996, Congress passed the Anti-terrorism and Effective Death Penalty Act commonly known as the AEDPA which added Section 2332b to Title 18, the Federal criminal code. Subsection (g)(5) states that the term Federal crime of terrorism means an offense that is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and is a violation of any one of a list of offenses that includes such things as destroying aircraft, taking hostages, and using a weapon of mass destruction. Presumably, these particular offenses were listed because Congress believed them to be the sort of things that terrorists do. But, what some academics call the dirty little secret of Section 2332b is that Congress did not impose any penalty for committing such a defined federal crime of terrorism. Nowhere. What the section actually prohibits is conduct that transcends national boundaries and is a violation of one of a wholly separate and substantially shorter list of offenses contained in subsection (a). Nowhere in the entire 106 pages of the AEDPA is the term federal crime of terrorism used except in its own definition! Apparently, having trouble agreeing on a definition of terrorism, Committee members drafting the bill adopted the concept of transcending national boundaries as a surrogate for a definition of terrorism. They altered the prohibited acts portion of the statute so that it referred to conduct transcending national boundaries instead of to a federal crime of terrorism, but no one thought to remove the now orphaned definition from the statute. The only actually crime of terrorism as such is set forth in the Military Commissions Act. Section 950v(b)(24) of the MCA creates an offense named simply Terrorism, which prohibits an unlawful combatant from intentionally killing or inflicting great bodily harm upon protected persons if they do so in a manner calculated to influence or affect the conduct of a government or civilian population by intimidation or coercion or to retaliate against government conduct. There are at least 14 other definitions of terrorism in the United States Code. Sometimes the law defines it by the purpose for which an act is committed, such as to coerce a government. Sometimes Congress defines it by simply providing a list of offenses that are deemed to be terrorism-related. And, sometimes the definition combines both the purpose and a list of offenses. Still other offenses are generally deemed to be terrorism because of the conduct involved such as using a biological weapon without any specific mention of the word terrorism. A fifth definitional approach employs a surrogate concept, such as the above-noted transcending national boundaries. One statute, Title 18, Section 2332, although in a chapter entitled Terrorism does not use that word at all, but attempts to limit its otherwise very broad scope by providing that No prosecution for any offense described in this section shall be undertaken by the United States except on written certification of the Attorney General or the highest ranking subordinate of the Attorney General with responsibility for criminal prosecutions that, in the judgment of the certifying official, such offense was intended to coerce, intimidate, or retaliate against a government or a civilian population. Apparently, 5

6 Congress decided it was better to assign the determination of whether an act constitutes terrorism to the Attorney General rather than to a judge and jury. To be sure, Congress is not alone in finding it difficult to define terrorism. There is no agreed definition under international law or in academia, either. Much academic literature defines terrorism as the unlawful targeting of non-combatants, a concept generally absent from legal definitions. And, of course, the parameters of a definition may vary by the use to which the term is put. Still, the many, varied, and inconsistent definitions in the United States Code reflect the lack of a unified legal theory for identifying just what conduct should be prohibited. The AEDPA is itself an example of this reactive approach. The statute was largely a result of recommendations from the Department of Justice based upon its experiences in trying those who bombed the World Trade Center in 1993 and in related cases involving al Qaeda members in New York. The Department found the best available statute in the early 1990s to be the 19th Century prohibition on seditious conspiracy. That was the charge used because at the time the Code lacked suitable offenses for intervening in a terrorist scheme before the terrorists actually struck. The AEDPA added the offenses of providing material support for terrorism in order that the criminal law might be brought to bear to deprive terrorists the resources needed to carry out attacks. We should remember that the notion of prevention, rather than prosecution, is properly given priority in the field of terrorism. As noted, public expectations may be disappointed in some cases where terrorist acts are thwarted by effective intelligence gathering that did not produce legally admissible evidence that would support a criminal prosecution or when prosecution is deemed to be unwise because of the potential exposure of informants or sophisticated intelligence gathering techniques. The public and the media must understand that not all bad guys will be prosecuted, and many of those who are will be charged with offenses less dramatic than actual bombings or killings. III. The AEDPA is hardly the only example of Congress taking a somewhat addled approach to defining criminal offenses. Our federal criminal law has developed largely as a series of sporadic responses to widely publicized criminal conduct that either touched upon a federal interest or provoked an expression of congressional outrage. It has been cast in a multitude of fashions that reflects the idiosyncratic imprint of a two century-long parade of draftsmen possessing quite different views of crime, justice, and the English language, but that is a story for another day. Suffice to say that while Congress may not have identified what constitutes the offense of terrorism, it has found time to create over 4,450 separate crimes, including such supposedly nefarious federal offenses as: using a motor vehicle to capture a wild burro on public land; reproducing the image of Smokey Bear without authorization; wearing the uniform of a postman in a theatrical production that tends to discredit the postal service; taking artificial teeth into a state without approval of a local dentist; using a personal check to pay a debt of less than one dollar; and broadcasting information concerning prizes in a fishing contest conducted for profit. It has long been clear that we need a body of law that is reasonably accessible, permitting both lawyers and laymen, if so disposed, to locate its core provisions with the expenditure of only a modest amount of effort. But that effort has languished without progress over nearly two centuries. 6

7 * * * We must recognize that some of the actions taken since 9/11 are controversial. That controversy will continue. We must work to make sure that the debate and the dissenters are correctly informed about just what the various legal reforms do and do not do. The law will continue to evolve as law enforcement focuses on a prevention paradigm and as, one continues to hope, the federal criminal law is someday truly codified in a rational manner. When all is said and done, I am confident that ways will be found to reconcile our liberties with our national security. The key will be in our longestablished reliance on the principles of democracy and the rule of law. An observer once noted that the beauty of our system is not that it is always right, but that it is usually responsive. And so it is and, I expect, will continue to be. I am banking on this principle to help guarantee that we not only survive the present challenges, but continue to stand as an exemplar for all those countries which seek the blessings of liberty and justice and security for their people. K&L Gates comprises multiple affiliated partnerships: a limited liability partnership with the full name K&L Gates LLP qualified in Delaware and maintaining offices throughout the U.S., in Berlin, in Beijing (K&L Gates LLP Beijing Representative Office), and in Shanghai (K&L Gates LLP Shanghai Representative Office); a limited liability partnership (also named K&L Gates LLP) incorporated in England and maintaining our London and Paris offices; a Taiwan general partnership (K&L Gates) which practices from our Taipei office; and a Hong Kong general partnership (K&L Gates, Solicitors) which practices from our Hong Kong office. K&L Gates maintains appropriate registrations in the jurisdictions in which its offices are located. A list of the partners in each entity is available for inspection at any K&L Gates office. This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. Data Protection Act 1998 We may contact you from time to time with information on K&L Gates LLP seminars and with our regular newsletters, which may be of interest to you. We will not provide your details to any third parties. Please london@klgates.com if you would prefer not to receive this information K&L Gates LLP. All Rights Reserved. 7