By Zona Hostetler
There is a compelling need for reasoned debate on the constitutional issues that have arisen from the federal government’s policies concerning those persons who have been detained in the aftermath of the September 11 attacks on our country. We can all be proud that leaders of the legal profession have not shied away from that debate.
Is such a debate inappropriate in light of the attacks? Does it give comfort to the enemies? I think not. Rather, I believe it is in the highest tradition of U.S. patriotism. As one of the nation’s earliest patriots, Thomas Paine, wisely wrote: "He that would make his own liberty secure must guard even his enemy from oppression for if he violates this duty he establishes a precedent that will reach to himself."
Since September 11, many bar leaders have thoughtfully exercised their responsibility as citizens and as special guardians of the Constitution to critically appraise the government’s proposed anti-terrorism responses. With help from its Criminal Justice Section, the American Bar Association has submitted well-researched comments on the Attorney General’s order providing for the monitoring of communications between designated detainees and their legal counsel.
The ABA comments stress that while the avowed goals for this monitoring may be worthy ones, the monitoring compromises the ability of attorneys to carry out their constitutional role to provide effective counsel. They also note that such monitoring violates existing U.S. statutes that provide that detainees be afforded opportunity for private consultation with counsel.
The ABA comments further point out that the monitoring can have a chilling effect on legitimate attorney-client communications and can actually harm public safety. For example, it is pointed out that only through the ability to communicate candidly and confidentially with a client can an attorney discuss the advantages of the client’s making a deal with the government whereby he or she will provide valuable information sought by the government in return for a reduced sentence or other benefit.
Similarly, bar groups, civil liberties organizations, and hundreds of law professors have questioned the breadth of the president’s order establishing military commissions for the trial of surrendering or captured prisoners abroad and for trials of noncitizens in this country who the government suspects have, in the words of the order:
. . . aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause injury to or have adverse effects on the United States, its citizens, national security, foreign policy or economy; or has knowingly harbored one or more individuals . . . [who are in these categories].
The president’s order extends to persons who may have had only a tangential relationship or no relationship to the September 11 events. It extends to persons whose alleged offenses may have occurred decades ago. Its provisions apply to those who aid acts of "international terrorism," but the term "international terrorism" is nowhere defined. The secretary of defense has the sole authority to define terrorism and decide if there is reason to believe that any individual might have committed or attempted to commit an act of terrorism as he defines it. The order is not limited to noncitizens overseas. Rather, it apparently encompasses permanent resident aliens of the United States. The order’s language sweeps so broadly that it would allow secret trials based on secret evidence. Most importantly, it expressly provides that there will be no appeal from any sentence, even a sentence of death, to an independent tribunal.
The bar associations of two of the jurisdictions that suffered damage from the September 11 attacks, New York City and Washington, D.C., have issued reports critical of the order’s explicit and potential deviation from the Constitution’s due process guarantees. The two bar association reports, as well as the report of the ABA Task Force on Terrorism, conclude that all trials should ensure basic due process procedures, including the right of appeal to an independent tribunal. In addition, the task force report recommends that any use of military commissions should be limited to narrow circumstances in which compelling security interests justify their use.
As of this writing, it appears that these constructive comments on the president’s order are having a salutary effect. The secretary of defense has called the constitutional debate on military tribunals useful, and, as I write this column, there is reason to believe that the Defense Department’s regulations are more likely than not to adhere to the well-regarded due process requirements followed in U.S. court-martial proceedings.
If so, this will be a good outcome. As U.S. Supreme Court Justice Wiley Rutledge famously wrote in his dissent in the 1946 Second World War military tribunal case, In re Yamashita:
In this stage of war’s aftermath it is too early for Lincoln’s great spirit, best lighted in the Second Inaugural, to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late.
Questioning, debate, and dissent from popular orthodoxy are both exercise of a cherished constitutional individual right of free speech and also an exercise of civic responsibility. As ABA President Bob Hirshon said in his December 10 speech to the nation’s mayors, "America is at its best when its many voices are heard, and its principles and actions are most sure when they have been tested and tried in the forum of public debate."
In that spirit, the Section of Individual Rights and Responsibilities publishes in this issue some of the nation’s leading voices in the ongoing constitutional debate.
