The War on Terrorism: The Conflict Between Liberty & Security

Published in The Hellenic Journal, November, 2004
A Talk to the Hellenic Law Society, San Francisco, October 14, 2004

 

It has been just over three years since the Twin Towers in New York City were destroyed in what may be considered the single most horrifying and destructive act of foreign aggression on the territory of the United States in its history.  That day, according to the President of the United States and others, “has changed everything.”  “Everything” is a lot, surely too much, and I presume it is wise not to take this declaration too literally.  One thing it appears to have changed, however, is the degree of the U.S. government’s willingness to engage in “preemptive” war as part of the “war on terrorism” declared by the President following the Twin Towers (and Pentagon) disaster.   Citing the war on terrorism as part of his justification, and as a preemptive strike against possible use of weapons of mass destruction against the United States, the President ordered the invasion of Iraq.

I do not intend in this talk to contribute to the current debate about Iraq. Whether the invasion of Iraq was justified, or the extent to which it has or has not been “successful,” or is likely to bring democracy to that country, or even whether it has reduced or increased terrorism against the United States, are not the subjects of my remarks.  Nor is the war on terrorism as it is being conducted against other nations, their leaders, or identified foreign terrorists the occasion for this talk.  It is exclusively concerned with the war on terrorism as it is being conducted in effect by the government against U.S. citizens by detaining them indefinitely in prisons or military facilities in the U.S. and abroad, especially in Guantanamo Bay, Cuba.  These actions are now being challenged in U.S. courts.

The title of this talk is, therefore, The War on Terrorism: The Conflict Between Liberty & Security.  Following Euclid’s method of enunciating geometrical propositions before demonstrating their truth, I will first plainly summarize, in two propositions, my view of the government’s position in the detention cases:

(1) The position of the U.S. government in the citizen detention cases is a repudiation of fundamental principles of Anglo-American law developed over the past 800 years, beginning with Magna Carta in 1215, advancing the democratic rule of law and the cause of human liberty against tyrannical government.

(2) To the extent that the government’s position is allowed to prevail, we will have lost some of the most important liberties for which our American republic stands, and made very long and possibly decisive steps toward dictatorial rule.

Let me begin to demonstrate the reality of these propositions by first acknowledging some relevant facts of American political history, as well as our personal habits, inclinations, and choices as we consider the conflict between liberty and security in the conduct of our own lives.

The present administration is not unique in asserting powers beyond those authorized by the U.S. Constitution during wartime, or even during times of threatened war.   In 1798, during the administration of John Adams  –the second President of the United States— the U.S. feared possible war with France, then in the throes of its Revolution.  On July 14, 1798  –Bastille Day, France’s Fourth of July– Congress, consistent with Executive policy, enacted legislation that seriously curtailed American civil liberties.  The “Alien and Sedition Acts,” as they were called –the “PATRIOT ACT” of its day– provided that any person, alien or citizen, could be fined up to $5,000, and imprisoned for up to five years, for undertaking to oppose or defeat the operation of any U.S. law or

threaten any officer of the U.S. government with any danger to his character, person, or property, or attempt to secure any insurrection plot, or unlawful assembly or unlawful combination (emphasis added).

These Acts also provided that anyone could be prosecuted for printing, writing, or speaking in a scandalous or malicious way against the government of the United States, either House in Congress, or the President, with the purpose of bringing them into contempt, stirring up sedition, or aiding and abetting a foreign nation in hostile designs against the United States.1

What this meant  –and was interpreted to mean—was that anyone who, for example, expressed an opinion such as that “John Adams is a damned fool,” or “John Adams doesn’t know what he is doing in carrying out an anti-French policy,” could be thrown in jail for five years.  In fact, under this Act, Benjamin Franklin Bache, Benjamin Franklin’s grandson, was ordered arrested by a federal judge for printing a newspaper article questioning the integrity of a document sent to Congress by President Adams.  The Alien and Sedition Acts so alarmed Thomas Jefferson (who was John Adams’s Vice-President), that Jefferson urged his home state of Virginia and other States to adopt resolutions providing that Acts of Congress in violation of the Constitution could be “nullified” by the States.  Congress made it clear, however, that due process of law would still be observed in enforcing the Alien and Sedition Acts, and that truth was admissible in defense.  The Alien and Sedition Acts expired in 1801, at the end of President Adams’ term of office.2

We don’t have to go as far back as the 18th century to find serious compromises of American civil liberties by Congress during times of war or threats of war.  Similar acts were passed during World War I, and a lot of people during that period –mainly, but not exclusively, resident aliens– were rounded up by the U.S. Government, arrested, and jailed for suspected “sedition.”  It was during this same period that one federal official obtained recognition as an especially effective “patriotic” American law enforcer; his name was J. Edgar Hoover.

Some members of this audience may be old enough to have been aware of the internment of Japanese Americans during World War II under Executive authority.  Many of you will recall that Congress –confessing governmental injustice– awarded reparations in the 1990’s to Japanese-American citizens for those unconstitutional internments.3 Finally, I am sure there are people here this evening  who recall, during the height of the Cold War and what has come to be known as the “McCarthy era,” Presidential Executive Orders and Congressional Acts requiring “Loyalty Oaths” and disclosures of political affiliations as conditions for federal and state employment or federal funding  –even, for example, to obtain federal college, university, or law school tuition  loans.  As you know, George Anastaplo, a great Greek-American honored with this Society’s first Athenian Award, had the principled courage to refuse to answer questions about his political beliefs when questioned about them  as a condition of admission to the Illinois State Bar by the State Supreme Court’s “Committee on Character and Fitness.”  Anastaplo relied for his refusal upon the political principles stated in the Declaration of Independence, and his First Amendment rights under the U.S. Constitution.  He was refused admission to the Illinois State Bar because of that principled courage, and then lost his appeal to the U.S. Supreme Court (which he argued before the Court himself) in a 5-4 decision that has evidently been overruled by later cases.  Anastaplo had the satisfaction of reading Justice Hugo Lafayette Black’s concluding words in his eloquent dissent in the Anastaplo case (which Black requested be read at his own funeral as his political testament) namely, “We must not be afraid to be free.”

What can or should we make of all this?  We can certainly infer that the government is inclined to be quick to put security above liberty when a policy relating to war is involved   –whether it is an actual fighting war, a “Cold War,” or even a threatened war.

The inclination to prefer security over liberty in threatening circumstances is an understandable one.  It is reflected in the priorities we ourselves adopt virtually every day in our personal lives.  Do you lock the door when you leave your home or apartment?  That’s a small surrender of your liberty to come and go as you please without locks and keys, a choice you make to avoid threats to the security of your property and person.  Will you agree to stay indoors if you hear an emergency alert on the radio, and the government instructs you to do so?   I myself recently did that in Cuba, at a hurricane alert. Do you avoid travelling on certain streets in certain neighborhoods in certain cities, at least at certain hours of the day or night, out of a concern for your safety?  Most of us do.  We thus often surrender voluntarily a portion of our liberty in the interest of greater security.

We are regularly accustomed to making choices in favor of greater security at the cost of less liberty.  We may say that life itself consists of a constant balancing between the relative weight we give to our liberty and to our security.  I might want to take the liberty, for example, to spend all the available money I have on a world tour, but that would threaten my financial security for years to come, so I choose not to give myself that liberty.  We say some people are less “risk averse” than others; meaning they are more willing to jeopardize their security in favor of gaining greater liberty and exercising a wider range of choices.   We call those more “risk averse,” who are content to lead highly restricted lives, taking minimal risks in order to maximize their security.  However we may strike the balance between liberty and security for ourselves,  the impulse to favor security over liberty, when there are known threats to our security, is entirely predictable, and understandable.

Something else, however, perhaps something much greater, is at stake when we permit the government to make the choice of greater or lesser liberty for us.  Where do we want the government to strike this balance?   How much liberty are Americans, as a people, willing to give up for the sake of protecting perceived threats to our national security?   How much difference does it make to us when we are not given the essential facts?

Let us look at the present U.S. government’s position on how much liberty we should give up to secure ourselves against terrorism.  Prof. Douglas W. Cassel, Jr. summarized the government position in a breakfast talk to members of the American Bar Foundation on August 6, 2004 as follows.  (I will be quoting further from Prof. Cassel’s talk):

The government’s theory in these cases is that the President, as Commander in Chief, on the basis of secret information unknown to anyone outside the Executive Branch, has the authority to designate an individual as an enemy combatant, to imprison that person with no prior judicial authorization or express congressional authority, to hold that person in prison without access to a lawyer, without access to courts, without charging the person with a crime, without conducting any trial, and without having due process of law.

Moreover, the President has asserted this authority to imprison the person indefinitely without limit in time.  The only limit was until the war on terrorism is over.  And…when will the war on terrorism be over, and how will we know if it ever does end?4

Make no mistake about what this means.  This means that the present government of the United States is asking each one of you to surrender to the President:

(1) your right to know the information the federal government has if it chooses to arrest and imprison you, or a member of your family, or a friend, as a suspected collaborator with a suspected terrorist or “armed combatant,” even though none of you has ever even heard of the suspect;

(2) your right to know the charges that may be filed against you that are the basis for your imprisonment;

(3) your right to communicate with anyone of your choosing;

(4) your right and liberty to contest the government’s claim in any court;

(5) your right to a lawyer and the liberty to defend yourself against the government’s claim; and

(6) your right to know when you, or a member of your family, or a friend will be freed from prison; in fact, your or their right ever to be released from prison until the government declares that the war on terrorism is “over.”

Is this the balance between liberty and security you are willing to strike in the conflict between liberty and security in the present war against terrorism?

The question I have just posed is not merely rhetorical, and I do not presuppose its answer.  Before I offer you further evidence in support of the two propositions with which I began this talk, we need to consider what may be the best argument for the government’s position, particularly as it has been advanced by the Attorney General of the United States in the detention cases.  I believe I can understand much about how and what the government is thinking, having served as an attorney for the U.S. Department of Justice and the Federal Trade Commission in Washington, D.C. and elsewhere.  Here’s the case: We are confronted with what may be the greatest threat this country has ever faced from foreign aggressors.  It is well within the range of possibility that terrorists are presently planning to buy on the black market in arms, or develop with what they can acquire from that market, one or more nuclear weapons capable of being brought into this country and detonated.  I am reasonably confident that this worst-case scenario is in the front of the government’s mind.  A nuclear weapon detonated in New York City, for example, could mean the death of millions of Americans.  In light of this possibility, squeamishness about compromise of our civil rights for actions sincerely directed toward avoidance of this terrible threat may seem misplaced to those responsible for assuring our national security.  The question is, however, whether disregard of the civil liberties guaranteed to U.S. citizens by our Constitution is a necessary part of the unprecedented degree and kind of vigilance the government seems to think this awesome threat requires.  In other words, even assuming the good faith of those who want to lower the constitutional barriers to unfettered exercise of the Executive powers of government, does our ability to avoid this threat really require us to put aside concern for maintenance of our constitutional safeguards against the excessive exercise of the police power in particular?

Law enforcement officers are commonly dissatisfied with the ways in which our constitutional system impedes the efficiency of their investigation of criminal acts.  Some may even long for the good old days when a suspect’s confessions could be compelled by interrogations amounting to torture, and warnings about suspects’ rights to counsel and silence were not required by the Supreme Court’s interpretation of the Fifth and Fourteenth Amendments.  The problem is that this kind of thinking inevitably leads to abuse.   If you assume a particular suspect is guilty, and you don’t have to worry about the Constitution, the temptation may be irresistible to turn mistaken assumptions into convictions by means that falsify the evidence or compel its fabrication.  This approach completely contradicts, of course, our constitutional presumption of innocence.

If you know anything about the Declaration of Independence and the First Ten Amendments to the U.S. Constitution –our Bill of Rights– and you value them as statements of our “unalienable rights to life, liberty, and the pursuit of happiness,” and the guarantee of our civil and political rights as citizens of a democratic republic, then I suspect the balance that the government has struck between security and liberty in the position it has taken about Presidential power is not the balance you would want the government to strike for you.  A majority of the Members of the U.S. Supreme Court appear to reject the government position on precisely these grounds.5

U.S. Supreme Court Justice David Souter, in an opinion in which Justice Ruth Ginsburg concurred, had this to say about the Executive’s power to make the choice for us in striking the balance between liberty and security:

The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each.  In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security.  For reasons of inescapable human nature, the branch of Government asked to counter a serious threat is not the branch on which to rest the nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory. Justice David Souter, concurring in part and dissenting in part in Hamdi v. Rumsfeld, –U.S.—, Decided June 28, 2004 (emphasis added).

Justice Souter voiced this opinion in a case in which a U.S. citizen, Yasar Hamdi, was arrested as a suspected “enemy combatant” on the basis of government allegations that he had received military training in Afghanistan, which Hamdi denied ever having done.  He was imprisoned for more than two years in the Norfolk and Charleston Naval Brigs, without ever being told what the charges were against him, without being given access to legal counsel or to any court, until his father filed a habeas corpus Petition for his release.  In a plurality opinion written by Justice Sandra Day O’Connor in the Hamdi case, the Supreme Court vacated a lower court ruling favoring the government, and remanded the case for further proceedings consistent with due process standards the Court said the government was required to follow, including recognition of Hamdi’s right to legal counsel and a formal hearing.

The most instructive and, in my judgment, correct opinion in the Hamdi case, however, was the dissenting opinion of one of the most conservative Members of the Court, Justice Antonin Scalia, who said that Hamdi was “entitled to a habeas decree requiring his release unless (1) criminal proceedings [were] promptly brought, or (2) Congress has suspended the writ of habeas corpus.”

The end of Justice Scalia’s dissenting opinion directly addressed our need to balance liberty and security in threatening times with these words:

The Founders well understood the difficult tradeoff between safety and freedom.  “Safety from external danger,” Hamilton declared “is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.  The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security in institutions which have a tendency to destroy their civil and political rights.  To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis –that, at the extremes of military exigency, inter arma silent leges.  Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.  Because the court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent (emphasis added).

Justice Scalia’s dissent in the Hamdi case is not only instructive; it was virtually prophetic.  Without taking the trouble to subject Mr. Hamdi –or itself– to the rigors of due process required by the Court’s plurality opinion, the government has now released Mr. Hamdi from custody, evidently unable to compose any colorable legal charge against him.  This is, in my judgment, strong evidence, if not virtual proof, of the injustice of Hamdi’s original and extended incarceration without due process of law.6

The views of U.S. Supreme Court Justices I have quoted reflect Prof. Cassel’s observation, in his American Bar Foundation talk, that the detention cases are “some of the most important decisions the Supreme Court has had to make in the history of our Constitution.”  Cassel made this judgment in part by recalling Benjamin Franklin’s answer to a woman’s question after the Constitutional convention had just ended, as to what kind of government we had been given.  Franklin’s famous reply was, “A republic, madam, if you can keep it.”

Prof. Cassel also based his judgment of the unprecedented importance of the detention cases on a review of seven safeguards the Founders believed were needed to secure American liberties.  I will list these safeguards in the order in which Prof. Cassel did:

(1) The Rule of Law: the idea that no person, including the President or any other government official, is above the law or beneath the law’s notice.

(2) Constitutionalism: the government only has those powers expressly or implicitly given to them under our Constitution.

(3) The Separation of Powers under the Constitution, and its system of checks and balances.

(4) An Independent Judiciary, secure in its tenure, and with the power to review the constitutionality of Executive actions.

(5) Due Process of Law, “proclaimed for the first time in our tradition eight centuries ago in the Magna Carta.”

(6) The Writ of Habeas Corpus, requiring the government to justify to a court of law the reasons for imprisonment of any citizen.

(7) Respect for the Law of Nations, articulated in the Declaration of Independence as “a decent respect for the opinions of mankind,” and embodied in the Constitutional rule that treaties ratified by Congress are the Supreme Law of the Land.

To this list, Alexis de Tocqueville, in his enduring and often prophetic book, Democracy in America, added three institutions he thought necessary to help preserve American liberties and prevent or mitigate despotic government: (1) the American legal profession; (2) the voice of private voluntary associations (such as the Hellenic Law Society); and (3) a free press.7

It is not known for certain whether Alexander Hamilton or James Madison, or both of these members of the Constitutional Convention, wrote No. 51 of The Federalist.  These words appear in that number of the series of documents whose exposition of the U.S. Constitution is as close and as definitive a reading as we can get of the intent of the Founders in framing our constitutional system:

Justice is the end of government.  It is the end of civil society.  It has ever been and ever will be pursued until it be obtained, or until liberty be lost in its pursuit.

 

I respectfully suggest that the members of this Society should think about these words, and hope that we Americans, as a people, will not lose sight of their importance.  I have elsewhere pointed out ways in which the American legal profession is no longer typically behaving the way Tocqueville said it should behave to protect our liberty,8 although Prof. Cassel’s talk gives us reason to applaud the American Bar Association and the American Bar Foundation leadership on the issue we are discussing this evening.  With respect to the encroachments on our civil liberties summarized by Prof. Cassel, we need to ask: Where is our “free press” in reporting and challenging them?  The government’s domestic policies relating to its war on terrorism deserve daily front page attention by every one of our major newspapers, and feature treatment in every major network television news broadcast until the polices I have criticized are clearly repudiated.

The opinions of the Supreme Court Justices I have quoted, their authoritative view of the Founders’ intentions in striking the balance between liberty and security, together with the summary of Prof. Cassel’s analysis and my own, constitute my proof of the two propositions enunciated at the beginning of this talk.  If you are persuaded by the demonstration, I would be justified in pronouncing “Q.E.D,” and restating the propositions as conclusions:

(1) The position of the U.S. government in the citizen detention cases is a repudiation of fundamental principles of Anglo-American law developed over the past 800 years, beginning with Magna Carta in 1215, advancing the democratic rule of law and the cause of human liberty against tyrannical government.

(2) To the extent that the government’s position is allowed to prevail, we will have lost some of the most important liberties for which our American republic stands, and made very long and possibly decisive steps toward dictatorial rule.

Belief in the truth of these  propositions suggests to me that one of the critical security needs we have now, is the need for authoritative assurances that the present governmental threats to our liberties cannot stand, and will not prevail.  If we are not to be afraid to be free, we must also not fail to be on our guard.

 

 

(C) 2004, Harrison Sheppard


1 As quoted by Gore Vidal in Inventing a Nation: Washington, Adams, Jefferson, Yale University Press (2003), at pp. 152-153.

2 Ibid., at pp. 153 and 163.

3 While a divided U.S. Supreme Court, in the Korematsu case, upheld the constitutionality of the internments, later revelation of the absence of any basis in fact for the government’s allegations may have led to a different decision had they been known to the Court at the time.

4 Prof. Douglas W. Cassel, Jr., Fellows Breakfast Talk, American Bar Foundation, Chicago, Illinois, August 6, 2004 (emphases added).   Prof. Cassel was a consultant to a number of the lawyers for the prisoners whose cases were recently decided before the U.S. Supreme Court.  The authority claimed by the President summarized in the text has been challenged in amicus briefs filed with the U.S. Supreme Court by the International Committee of the Red Cross, various United Nations Human Rights agencies, the Inter-American Commission on Human rights, and “a long list of international law scholars and experts” ibid.

5 [“T]here are five votes on the current Supreme Court for the proposition that no American citizen arrested in the United States can be held as an enemy combatant even with due process.  If Americans are arrested in America, they either must be charged with a crime or released” Cassel Talk.

6 See, e.g., the news report in the San Francisco Chronicle, Monday, September 27, 2004, “U.S. citizen held nearly three years expected to be freed Tuesday, lawyer says,” which begins as follows: “A U.S. citizen captured in Afghanistan and held without charges since late 2001 as an enemy combatant is scheduled to be released Tuesday and flown to Saudi Arabia, where he grew up, his lawyer said.   Yaser Esam Hamdi, whose case led to a Supreme Court decision limiting the president’s powers to indefinitely hold wartime combatants, will not be charged with any crime under an agreement with federal officials made public Monday.  The agreement requires Hamdi to give up his American citizenship, renounce terrorism and not sue the U.S. government over his captivity. Justice Department officials declined to comment beyond the agreement“ (emphasis added).  It should be noted that while Mr. Hamdi was “captured” in Afghanistan, during most of his captivity he was imprisoned in the U.S., in naval brigs in Norfolk and Charleston.

7 Tocqueville, Democracy in America, Everyman Library., Alfred Knopf, New York, 1994, esp. Chapter XVI, Vol. I, “Causes Which Mitigate The Tyranny of the Majority in the United States.”

8 Sheppard, “The Hazardous Future of Democracy in America: Tocqueville & Lawyers in America,” a lecture prepared for St. John’s College, Santa Fe, New Mexico, scheduled for November 5, 2004, citing, inter alia., “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237 (Winter 1996).