The Threat to PatriotismBy Ronald Dworkin

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What has al-Qaeda done to our Constitution and to our national standards of fairness and decency Since September 11 the government has enacted legislation adopted policies and threatened procedures that are not consistent with our established laws and values and would have been unthinkable before

On October 25 Congress passed the USA Patriot Act with only one dissenting vote in the Senate and sixty-six in the House That statute sets out a new breathtakingly vague and broad definition of terrorism and of aiding terrorists someone may be guilty of aiding terrorism for example if he collects money for or even contributes to a charity which supports the general aims of any organization abroadmdashthe IRA for example or foreign anti-abortion groups or in the days of apartheid the African National Congressmdashthat uses violence among other means in an effort to oppose American policy or interests If the attorney general declares that he has reasonable grounds for suspecting any alien of terrorism or aiding terrorism in the broad sense that is defined then he may detain that alien for seven days with no charge If the alien is then charged with any even a wholly unrelated crime and the attorney general finds that the release of the alien will threaten the national security of the United States or the safety of the community or any person he may be detained for six months and then for additional six-month periods so long as the attorney general continues to declare that his release would threaten national security or anyones safety[1]

The Justice Department has now detained several hundred aliens some of them in solitary confinement for twenty-three hours a day None of them has been convicted of anything at all and many of them have been charged with only minor immigration offenses that would not by themselves remotely justify detention [2] It has refused repeated efforts on the part of journalists the ACLU and other groups even to identify these detainees[3] So our country now jails large numbers of people secretly not for what they have done nor even with case-by-case evidence that it would be dangerous to leave them at liberty but only because they fall within a vaguely defined class of which some members might pose danger

The USA Patriot Act relaxes many of the other rules that protect people suspected of crime from unfair investigation and prosecution It greatly expands the governments power to conduct searches of the premises and property of citizens

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and aliens alike without informing them Such secret searches were formerly permitted pursuant to a special warrant for that purpose only if the primary purpose of the search was to collect information about a foreign nations activities in this country Now they are permitted if the primary purpose is to collect evidence of a crime that can be used in a prosecution so long as intelligence-gathering is a subsidiary purpose as it can always be said to be when a suspected terrorists property is searched So no one may now be confident that his premises have not been searched by the government without his knowledge[4]

The Justice Department has also without any congressional approval at all unilaterally altered other important safeguards against injustice including for instance the right of someone suspected or accused of a crime to consult in private a lawyer of his own choosing On October 31 the department announced that it had the authority to monitor conversations between detainees and the lawyers they consulted to plan their defense whenever according to the attorney general there is a substantial risk that such conversations could facilitate terrorism by passing on information or instructions

The order does provide that the detainee and lawyer must be advised that their conversation will be overheard (except when a judge permits secret monitoring) and that the monitoring must be conducted by a special team from within the Justice Department whose members are directed not to divulge to those actually prosecuting the detainee any part of the conversation that would be covered by the traditional lawyerndashclient privilege But monitoring even with these qualifications seriously undermines peoples constitutionally guaranteed right to counsel of their choice when they are accused of a crime only the most trusting prisoner will be willing to discuss defense strategy candidly with his lawyer if he knows that agents from the organization that is trying to convict him are listening

On November 13 in the most dramatic declaration so far President Bush announced that any non-US citizen that he declared a suspected terroristmdashaliens resident in the United States for many years as well as soldiers captured in combat in Afghanistanmdashmight be tried at his sole discretion by a military tribunal rather than in an ordinary criminal court Such tribunals might be secret and would be governed by special rules laid down by the secretary of defense including provisions for the qualifications and conduct of lawyers representing the accused the ordinary rules of evidence would not apply the tribunal might declare a defendants guilt even though not satisfied of his guilt beyond a reasonable doubt its verdict including any death penalties it might order could be taken by a two-thirds vote of its members and that verdict might be reviewed only by the President or the secretary of defense if the President so designates This is the

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kind of trial we associate with the most lawless of totalitarian dictatorships If any American were tried by a foreign government in that way even for a minor offense let alone a capital crime we would denounce that government as itself criminal

Bushs military tribunal plan as originally announced provoked more criticism than any other part of the governments new hard-line criminal justice rules not only from liberal commentators and organizations including The New York Times but also from some conservatives such as the columnist William Safire and Republican Representative Bob Barr of Georgia Our ordinary federal courts they said have shown themselves fully capable of trying terrorists in the past and could do so again Trying aliens in secret military tribunals would outrage public opinion in the Muslim world and undermine our claims that we were seeking justice not intimidation or revenge Moreover foreign democracies would be much less likely to extradite suspected terrorists to this country or even to share information that might be used in prosecuting terrorists if they considered our methods of trying them unfair or unsafe (Indeed as Aryeh Neier wrote recently in these pages Baltazar Garzoacuten a prominent Spanish judge has said that the European Convention on Human Rights which almost all European nations have joined would prohibit extraditing any suspects to a nation that used such tribunals as criminal courts[5])

On December 28 The New York Times reported that in response to these criticisms the government is considering revisions to the military tribunal scheme that would provide for a presumption of innocence impose a beyond-reasonable-doubt standard for conviction guarantee the right to counsel of ones choice require a unanimous decision imposing the death penalty and provide for some form of appellate review[6] No such revisions have yet been announced but it is significant that the Justice Department has decided to try Zacarias Moussaoui probably the most important prisoner it has detained so far in an ordinary federal court in Alexandria Virginia rather than in a special tribunal (Moussaoui was arrested last August after suspicious behavior in a flight school where he wanted instruction in flying but not in taking off or landing It is widely suspected that Moussaoui would have been among the hijackers on September 11 if he had not been arrested earlier)

Still the government apparently intends to use special tribunals of some sort to try for as yet undesignated offenses a large group of people captured in Afghanistan and flown to a detention center at the American military base on Guantaacutenamo Bay in Cuba where prisoners are kept in small low cages whose chain-link walls expose them to the weather and are provided with an inch-thick mat and a bucket for a toilet According to press reports the prisoners so far transported to Cuba

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wore blacked-out goggles during the long trip and their beards which many of them regard as required by their religion were shaved (allegedly to protect against lice) The prisoners presumably include Afghan soldiers fighting under the direction of the Taliban which was the effective government of their country and they would seem plainly entitled as prisoners of war to the provisions of the Geneva Conventions one of which states that if there is doubt whether or not a person is entitled to be treated as a prisoner of war the issue must be decided by a competent tribunal Though Bush initially declared that the detainees were not deserving of the protections of the Geneva Conventions and Attorney General John Ashcroft and Secretary of Defense Donald Rumsfeld agreed Secretary of State Powell asked the President to reconsider that decision among other reasons in order to protect American soldiers taken captive in the future Bush has now agreed to reconsider it But he also prejudged the decision of any tribunals that might be organized he said that the detainees were all killers who would not be granted the status of prisoners of war His statement does not encourage hope that the decisions of the tribunals would be independent and fair[7]

The governments dubious laws practices and proposals have provoked surprisingly little protest in America Even some groups that traditionally champion civil rights have with surprisingly few reservations supported the governments hard line[8]Polls suggest that nearly 60 percent of the public approves even the use of military tribunals[9] We should not be surprised at any of this September 11 was horrifying it proved that our enemies are vicious powerful and imaginative and that they have well-trained and suicidal fanatics at their disposal Peoples respect for human and civil rights is very often fragile when they are frightened and Americans are very frightened The country has done even worse by those rights in the past moreover It suspended the most basic civil rights in the Civil War punished people for criticizing the military draft in World War I interned Japanese-American citizens in detention camps in World War II and after that war encouraged a Red Scare that destroyed the lives of many of its citizens because their political opinions were unpopular Much of this was unconstitutional but the Supreme Court tolerated almost all of it

We are ashamed now of what we did then we count the Courts past tolerance of anti-sedition laws internments and McCarthyism as among the worst stains on its record That shame comes easier now of course because we no longer fear the Kaiser or kamikazes or Stalin It may be a long time before we stop fearing international or domestic terrorism however and we must therefore be particularly careful now What we lose now in our commitment to civil rights and fair play may be much harder later to regain

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True it is politically difficult for elected officials to criticize or oppose hugely popular government policies John Ashcroft has already told us that those who oppose his policies are giving aid and comfort to the terrorists But this intimidation makes it all the more important to scrutinize the arguments that have been put forward to justify such a major retreat from our traditional concern for fair play and for the rights of anyone accused of serious crime

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Some of the arguments are transparently weak It is often said for example that terrorists do not deserve the traditional protections we afford other suspects because terrorists do not respect freedom themselves Defending his military tribunal scheme before a group of applauding prosecutors President Bush declared that non-US citizens who plan andor commit mass murder are more than criminal suspects They are unlawful combatants who seek to destroy our country and our way of life[10] Professor Laurence Tribe of Harvard Law School said something remarkably similar Though he opposed the military tribunal plan as originally conceived he did not oppose a revised and improved version of the plan noting that American soldiers accused of crime are subject to courts-martial not ordinary criminal trials Why should members of al-Qaeda and those who aid them enjoy a constitutional right to a theoretically purer form of justice than our own soldiers he asked[11]

But the Presidents order calls for a military trial when he determines only that there is reason to believe that someone is a member of al-Qaeda or has engaged in or conspired to commit acts of international terrorism or has harbored or aided such people Almost the entire point of any criminal trialmdashcivilian or militarymdashis to decide whether those who are accused of crimes are actually guilty of them and it is particularly worrying that the President who would have the right to review verdicts and final decisions under the military tribunal arrangements he proposed claims that his suspicion is tantamount to guilt In view of the numbers involved there is an evident danger that some innocent people who would have been acquitted under the stricter rules of an ordinary American criminal trial will in fact be convicted and punished perhaps with death in military trials It seems even more likely that many of the hundreds of aliens now being detained month after month in secret and on trivial charges are not terrorists do not aid terrorists and would pose no danger to the community if they were released Of any proposed set of procedures we must ask not whether the guilty deserve more protection than those procedures afford but whether the innocent do

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A second argument insists that the administrations new measures are justified because they mainly target aliens and aliens have either no rights under our constitutional system or at least fewer rights than citizens do The Fifth Amendments Due Process Clause declares however that no persons life or liberty may be taken without due process of law and the Supreme Court has several times held that aliens within the United States are in principle entitled to the same due process as citizens Foreigners seeking to emigrate to the United States it is true have no rights to any form of hearing or other process in considering their applications But as Justice Breyer said in Zadvydas v Davis[12] an important case the Court decided last June once an alien enters the country the legal circumstance changes for the Due Process Clause applies to all persons within the United States including aliens whether their presence here is lawful unlawful temporary or permanent

In the Zadvydas case the Court held by a five to four majority that it would violate the Due Process Clause for Congress to permit the Immigration and Naturalization Service indefinitely to detain immigrants who had been ordered deported but whom no other country would admit Presciently Breyer added that the Court was not considering terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security But he presumably meant no more than what he said that the Court was not deciding either way whether aliens who had been ordered deported but no other country was willing to accept could be detained indefinitely when the government alleged this to be necessary for national security

Certainly nothing in his statement or in any other Supreme Court decision holds that lawfully resident aliens may be tried for crimes allegedly committed in this country in special military tribunals without the normal rules of evidence or that they may be denied the benefit of private conversations with a lawyer or that they may have their homes searched without their knowledge when the search is a fishing expedition to discover evidence that may be used in charging them with some crime or other

Proponents of trying aliens in special military tribunals cite as a precedent the so-called Saboteurs CasemdashEx Parte Quirinmdashwhich the Supreme Court decided on July 31 1942[13] In that case eight German soldiers all of whom had lived for substantial periods in America and returned to Germany before the war landed from submarines on the Long Island and Florida coasts with explosives and instructions to demoralize this country by blowing up munitions factories and civilian crowds Though the FBI claimed credit for intercepting them and President

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Roosevelt gave J Edgar Hoover a medal for his vigilance the saboteurs were in fact discovered only when one of them who had landed with the intention of divulging the plot reported it to the police

Roosevelt insisted that the Germans be tried in a secret military tribunal in retrospect at least it seems plain that secrecy served only to protect the FBIs false account and thus assure the nation that its borders were secure Lawyers appointed to represent the Germans appealed the order to try them before a military tribunal The Supreme Court heard arguments and decided the case in great haste the Justices ruled that it was not improper to try the defendants in military tribunals but they did so without any justifying opinion which they promised to supply later The saboteurs were quickly tried in secret and six of them were executed on August 8 1942 (Roosevelt commuted two of the sentences including that of the German who revealed the plot)

The defendants argued to the Supreme Court that they were entitled to the Constitutions guarantees of due process and trial by jury and so should have been tried in ordinary courts not by special military tribunals When the Court finally published its opinion more than two months after the executions it replied unanimously that the constitutional guarantees were not intended to supplant the nations laws of war which before the Constitution was adopted permitted military tribunals to try enemy combatants accused of unlawful acts of war (the Court cited the conviction of British Major John Andreacute for spying during the Revolutionary War)

The government should be embarrassed to appeal to the Quirin decision as justification for its treatment of aliens now because that decision like the Courts 1944 decision permitting the detention of Japanese-Americans[14] is widely regarded as overly deferential to the executive and in a crucial part wrong (Justice Frankfurter in a bizarre and embarrassing memorandum to his fellow justices had pleaded with them to ignore legal niceties and do what Roosevelt asked as part of the war effort[15]) The case is a useful reminder of how shortsighted and in the long run self-defeating the appeal to judges to show unity with the executive often is

In any case the military trials condoned in the Quirin case can be distinguished from those that President Bushs order contemplates Chief Justice Stones opinion for the Court in the 1942 case emphasized that Congress had declared war on Germany which was therefore an enemy power that the defendants did not deny that they were acting on behalf of that enemy power and that they were therefore unlawful combatants Congress has not declared war on Afghanistan or the Taliban or even al-Qaeda and the Presidents order is therefore a decision of the

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executive branch acting alone rather than with legislative concurrence[16] Even if Congress had authorized the order in some way the Courts Quirin decision which assumed that the defendants were acting on behalf of an enemy nation would not automatically apply to the much broader class of suspects the President has designated

It is true that the line between a conventional enemy power and an international terrorist group is fuzzy and that the old rules of war need to be revised Perhaps our law should treat some aliens who cross our boundaries planning terrorism as if they were soldiers committing unlawful acts of war on behalf of an organized enemy But we could not plausibly treat everyone to whom the Presidents order applies in that way Basque separatists IRA splinter groups Colombian drug lords and foreign Mafia chieftains no doubt act in ways harmful to American interests and may be subject to arrest But we would not be justified in labeling them as unlawful combatants in a war and then shooting them as spies because they were not wearing uniforms

The most powerful argument in favor of the administrations new measures however is very different and it has undoubted force What any nation can afford to provide by way of protection for accused criminals must at least partly depend on the consequences such protections would have for its own security The terrorist threat to our security is very great and perhaps unprecedented and we cannot be as scrupulous in our concern for the rights of suspected terrorists as we are for the rights of people suspected of less dangerous crimes As Justice Jackson put it in a now often-quoted remark we cannot allow our Constitution and our shared sense of decency to become a suicide pact Professor Tribe put the point this way it may be right in more normal times to allow a hundred guilty defendants to go free rather than convict one innocent one but we must reconsider that arithmetic when one of the guilty may blow up the rest of Manhattan[17]

We must however take care to distinguish two conclusions that might be thought to follow from these arguments We might think first that the requirements of fairness are fully satisfied in the case of suspected terrorists by laxer standards of criminal justice which run an increased risk of convicting innocent people Or we might think something very different that even though laxer standards would be unfair we must nevertheless adopt them to protect ourselves from disaster If we accepted the first conclusion we would think ourselves justified in setting lower standards of protection for anyone suspected of terrorism and we would see no reason to attempt to mitigate the heightened risk for innocent suspects by adopting substi-tute protections If we accept only the second conclusion however and concede that we are treating some people unfairly we should demand a much

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more discriminating approach We should insist that government show that unfair treatment is necessary not for some widely defined category of persons but so far as this is practicable for individual suspects or detainees one by one We should also try to mitigate the unfairness in every practicable way when we deem that unfairness necessary When we treat individual people unfairly for our own safety we owe them as much individual consideration and accommodation as is consistent with that safety

Much of the rhetoric defending the administrations new measures seems aimed at justifying lower standards for all suspected terrorists as being fair We are told that fairness to criminal suspects requires only that we strike an appropriate trade-off or balance between two valuesmdashfreedom and securitymdasheach of which unfortunately can sometimes be served only at the cost of the other Because terrorism is a horrific threat to security we are it is said justified in striking the balance differently for that crime and it is therefore not unfair to subject suspected terrorists to a higher risk of unjust conviction

The scope of the new policies seems to assume that conclusion They presuppose that the undoubted dangers of international terrorism permit a degraded standard of protection for anyone who might be thought connected to terrorismmdasha standard that allows mass preventive detention general invasions of the right to counsel indifference toward privacy and contempt for the Geneva Conventions Even the administrations few critics seem to accept the idea that fairness is a matter of balancing risk and rights Senator Russ Feingold of Wisconsin the single senator who voted against the USA Patriot Act conceded the need for a new balance between security and freedom in the face of the terrorist danger He claimed only that that act got the new balance wrong

In fact however the familiar metaphors of trade-off and balance are deeply misleading because they suggest a false description of the decision that the nation must make They suggest that wemdashAmericans in generalmdashmust decide what mixture of security and personal freedom we want for ourselves in much the same way as we decide how elaborate a network of intercity roads we want once we know how much such roads cost and what their impact on the countryside might be If that really were our choice it would be an easy one to make None of the administrations decisions and proposals will affect more than a tiny number of American citizens almost none of us will be indefinitely detained for minor violations or offenses or have our houses searched without our knowledge or find ourselves brought before military tribunals on grave charges carrying the death penalty Most of us pay almost nothing in personal freedom when such measures are used against those the President suspects of terrorism

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The issues we actually face are very different however and the balancing metaphor obscures those issues We must decide not where our interest lies on balance but what justice requires even at the expense of our interests out of fairness to other peoplemdashthose resident and foreign aliens who might very well be ensnared in the less protective and more dangerous legal system the administration is constructing for them We cannot answer that question by simply comparing the costs and benefits to any person or group

Nor can we answer it as the balancing metaphor also suggests we can by composing a sliding scale that shows how individual rights we grant accused criminals are diminished in proportion to the danger the crime they are accused of poses to our security It is true that the rights we have traditionally recognized impair our security to some degree We might well be a safer society if we allowed our police to lock up people they thought likely to commit crimes in the future or to presume guilt rather than innocence or to monitor conversations between an accused and his lawyer But our criminal justice system has not evolved through calculations of precisely how much risk we are willing to run in order to give any particular class of accused criminals a certain degree of protection against unjust conviction we do not give accused murderers for example less protection than accused embezzlers or jaywalkers

The traditional rights of an accused have developed piecemeal over time and can only be explained historically at least in detail They have roots in the English common law and were shaped and developed step by step in discrete expansions modifications and contractions largely in decisions of the Supreme Court interpreting the abstract language of the Constitution such as the requirement of due process of law Some of the most important of the rights now enforced were recognized only within the last fifty years Much of what we take to be indispensablemdashjury trials and the complete separation of judicial from prosecutorial functions for examplemdashare not features of the criminal system of other democracies whose fairness is not in doubt they have other features our system lacks howevermdashconspicuously a ban on death as a punishmentmdashso that the fairness of two systems can only be compared as a whole and inexactly

Nevertheless the rights that we have evolved in that way are those that we now as a nation deem the minimum that we owe to anyone who is accused of a serious crime and pursued and tried within our system of criminal justice Fairness requires as a matter of equal concern for anyone who might be innocent that we extend those rights to everyone brought into that system [18] Whenever we deny to one class of suspects rights that we treat as essential for others we act unfairly particularly when that class is politically vulnerable as of course aliens are or is

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The issues we actually face are very different however and the balancing metaphor obscures those issues We must decide not where our interest lies on balance but what justice requires even at the expense of our interests out of fairness to other peoplemdashthose resident and foreign aliens who might very well be ensnared in the less protective and more dangerous legal system the administration is constructing for them We cannot answer that question by simply comparing the costs and benefits to any person or group

Nor can we answer it as the balancing metaphor also suggests we can by composing a sliding scale that shows how individual rights we grant accused criminals are diminished in proportion to the danger the crime they are accused of poses to our security It is true that the rights we have traditionally recognized impair our security to some degree We might well be a safer society if we allowed our police to lock up people they thought likely to commit crimes in the future or to presume guilt rather than innocence or to monitor conversations between an accused and his lawyer But our criminal justice system has not evolved through calculations of precisely how much risk we are willing to run in order to give any particular class of accused criminals a certain degree of protection against unjust conviction we do not give accused murderers for example less protection than accused embezzlers or jaywalkers

The traditional rights of an accused have developed piecemeal over time and can only be explained historically at least in detail They have roots in the English common law and were shaped and developed step by step in discrete expansions modifications and contractions largely in decisions of the Supreme Court interpreting the abstract language of the Constitution such as the requirement of due process of law Some of the most important of the rights now enforced were recognized only within the last fifty years Much of what we take to be indispensablemdashjury trials and the complete separation of judicial from prosecutorial functions for examplemdashare not features of the criminal system of other democracies whose fairness is not in doubt they have other features our system lacks howevermdashconspicuously a ban on death as a punishmentmdashso that the fairness of two systems can only be compared as a whole and inexactly

Nevertheless the rights that we have evolved in that way are those that we now as a nation deem the minimum that we owe to anyone who is accused of a serious crime and pursued and tried within our system of criminal justice Fairness requires as a matter of equal concern for anyone who might be innocent that we extend those rights to everyone brought into that system [18] Whenever we deny to one class of suspects rights that we treat as essential for others we act unfairly particularly when that class is politically vulnerable as of course aliens are or is

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identifiable racially or by religious or ethnic distinction It makes no sense to say that people accused of more serious crimes are entitled to less protection for that reason If they are innocent the injustice of convicting and punishing them is at least as great as the injustice in convicting some other innocent person for a less serious crime So we must reject the balancing argumentmdashit is confused and false If we believe that in our present circumstances we must subject some people to special risks of grave injustice then we must have the candor to admit that what we do to them is unjust

Do we really face such extreme danger from terrorism that we must act unjustly That is a difficult question We cannot yet accurately gauge the actual power of the linked groups of terrorist organizations and cells that apparently aim to kill as many Americans as possible Indeed we scarcely know the identities and locations of many of these groups The September attack was made more feasible by our own failures and we could do much to correct those failures without sacrificing traditional rights The FBI and other agencies failed to notice or investigate important warning signals and there were unpardonable defects in airport security that we have apparently still not repaired for the shameful reason that employing competent airport security personnel is expensive It is unclear moreover how far the administrations various new measures including military trials would actually help to prevent future attacks

But al-Qaeda killed by latest reckoning approximately 3000 people in minutes on September 11 which is a quarter of the number of murders in the entire country in 1999 If they or some other terrorist organization has or gains access to nuclear chemical or biological weapons and the means to use them then the threat to us would be truly enormous It would justify unusual and in themselves unfair measures if the government thought that these would substantially reduce the risk of catastrophe Even then however it would be imperative to permit only the smallest curtailment of traditional rights that could reasonably be thought necessary and to attempt to mitigate the unfairness of these measures so far as safety allows In several respects the administrations new criminal justice policies fail that test

First as I have emphasized the new policies define those who may be treated unfairly very broadly instead of insisting on a more discriminating test of the actual danger a suspect poses Ali al-Maqtari for example a Muslim visitor was arrested on September 15 and jailed under harsh conditions for eight weeks Apparently he was arrested because his wife wore an Arab headdress because he and his wife spoke a foreign language to each othermdashFrenchmdashand because they had box-

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cutters with them which he used in his job in a market and she in the shipping room of a nursery[19]

Second the new measures provide that in each case the determination that some special danger requires bypassing traditional rights and running a higher risk of injustice is to be made by the executive branch alonemdashby the President or by the attorney general or some other official who is subject to the Presidents direction True detainees can challenge certain of these rulings in court through the limited form of habeas corpus proceeding that the Patriot Act allows for example But detainees may be unaware of their rights or have difficulty finding effective counsel[20] and it would seem obviously fairer to require a further independent judicial check on those decisions to require for example that no suspect be detained for extended periods without trial unless the government has convinced a judgemdashin a private hearing in chambers if necessarymdashthat security would be jeopardized by releasing him and that no conversations between a prisoner and his lawyer be monitored unless not only the attorney general but an independent judge has been satisfied that allowing such conversations to be private would jeopardize the lives of others[21]

Assigning judges such roles would presumably not itself threaten national securitymdashfederal judges are as responsible and loyal as any other officialsmdashand it would make it more likely that the special powers were exercised only when genuinely necessary It may be that judges will be excessively deferential to the government in such proceedings But that is no reason for not giving them the power to intervene when they be-lieve that the governments position is indefensible

Finally the government apparently intends to seek the death penalty in its prosecution of some of those it accuses of terrorism But if it chooses to try them under conditions that run an increased risk of convicting the innocentmdashbefore special military tribunals in which they would have fewer rights than in ordinary criminal courts for examplemdashthen it seems irresponsible to ask for death as a punishment because that penalty is unnecessary for safety and magnifies the horror of an unjust conviction We may need to incarcerate suspected terrorists to avoid great danger but we do not need to kill them

Our government has already gone too far then in displacing the constitutional and legal rights that we have evolved as our own national standard of fair play in the criminal process Of course we are frightened of the power of suicidal terrorists to kill again perhaps on an even more massive scale But what our enemies mainly hope to achieve through their terror is the destruction of the values they hate and we cherish We must protect those values as well as we can even as we fight the

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cutters with them which he used in his job in a market and she in the shipping room of a nursery[19]

Second the new measures provide that in each case the determination that some special danger requires bypassing traditional rights and running a higher risk of injustice is to be made by the executive branch alonemdashby the President or by the attorney general or some other official who is subject to the Presidents direction True detainees can challenge certain of these rulings in court through the limited form of habeas corpus proceeding that the Patriot Act allows for example But detainees may be unaware of their rights or have difficulty finding effective counsel[20] and it would seem obviously fairer to require a further independent judicial check on those decisions to require for example that no suspect be detained for extended periods without trial unless the government has convinced a judgemdashin a private hearing in chambers if necessarymdashthat security would be jeopardized by releasing him and that no conversations between a prisoner and his lawyer be monitored unless not only the attorney general but an independent judge has been satisfied that allowing such conversations to be private would jeopardize the lives of others[21]

Assigning judges such roles would presumably not itself threaten national securitymdashfederal judges are as responsible and loyal as any other officialsmdashand it would make it more likely that the special powers were exercised only when genuinely necessary It may be that judges will be excessively deferential to the government in such proceedings But that is no reason for not giving them the power to intervene when they be-lieve that the governments position is indefensible

Finally the government apparently intends to seek the death penalty in its prosecution of some of those it accuses of terrorism But if it chooses to try them under conditions that run an increased risk of convicting the innocentmdashbefore special military tribunals in which they would have fewer rights than in ordinary criminal courts for examplemdashthen it seems irresponsible to ask for death as a punishment because that penalty is unnecessary for safety and magnifies the horror of an unjust conviction We may need to incarcerate suspected terrorists to avoid great danger but we do not need to kill them

Our government has already gone too far then in displacing the constitutional and legal rights that we have evolved as our own national standard of fair play in the criminal process Of course we are frightened of the power of suicidal terrorists to kill again perhaps on an even more massive scale But what our enemies mainly hope to achieve through their terror is the destruction of the values they hate and we cherish We must protect those values as well as we can even as we fight the

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terrorists That is difficult it requires discrimination imagination and candor But it is what patriotism now demands

mdashJanuary 31 2002

Notes

[1]The bill the administration originally sent to Congress on September 18 was even worse than the final act It would have licensed the use in American courts against American citizens of information obtained through wiretaps abroad that would be unconstitutional here permitted freezing all the assets of people accused of terrorism even before they were tried and allowed indefinite detention when the Justice Department said only that it had had reason to believe rather than reasonable grounds for suspecting terrorism Congress took longer than Attorney General John Ashcroft wanted to consider the billmdashhe said it would be dangerous to delay passage for more than a few daysmdashand it deleted some of the bills most objectionable features

[2] A CNN broadcast described the history and fate of some of the detainees See CNN Presents The Enemy Within January 12 2002 According to that broadcast Mazen al-Najjar for example a Palestinian has an American PhD has lived in America for over twenty years and has three children born here In 1997 he was arrested for overstaying his visa the Justice Department claimed he had ties to terrorist organizations but a judge decided there was no evidence of that and ordered him released in 2000 Immediately after September 11 he helped to organize a blood drive for its victims but was picked up on the street and taken back into detention He is held in twenty-three-hour lockdown solitary confinement and the press is not allowed to interview him The Justice Department has determined that it would threaten security to release him but he has been allowed no hearing in which to attempt to rebut that claim

On the same broadcast an interviewer suggested to Viet Dinh an assistant attorney general that the agency was not particularly interested in the violations with which people like al-Najjar were actually charged Right he said What we are doing is simply using our process or our discretion to the fullest extent to remove from the street those who we suspect to be engaging in terrorist activity

[3] Officials have steadily refused such information citing security interests as justification See Dan Eggen Delays Cited in Charging Detainees The Washington Post January 15 2002 p A1

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[4] See Jeffrey Toobin Crackdown The New Yorker November 5 2001 p 56

[5] The Military Tribunals on Trial The New York Review February 14 2002

[6] See Neil A Lewis Rules on Tribunal Require Unanimity on Death Penalty The New York Times December 28 2001

[7] As Kenneth Roth the executive director of Human Rights Watch pointed out in a letter to Condoleezza Rice the national security advisor America could have pursued the terrorists as criminals But since the United States government engaged in armed conflict in Afghanistanmdashby bombing and undertaking other military operationsmdashthe Geneva Conventions clearly do apply to that conflict

[8] See Laurie Goodstein Jewish Groups Endorse Tough Security Laws The New York Times January 3 2002

[9] Full poll data are available at www publicagendaorgspecialsterrorismterror_pubopinionhtm

[10]Mike Allen and Susan Schmidt Bush Defends Secret Tribunals for Terrorism Suspects The Washington Post November 30 2001 p A28

[11] Laurence H Tribe Trial by Fury The New Republic December 10 2001 pp 18 20

[12] 533 US 678 (2001)

[13] Ex Parte Quirin 317 US 1 (1942)

[14] Korematsu v United States 323 US 214 (1944)

[15] See David J Danelski The Saboteurs Case Journal of Supreme Court History 1996 Vol 1 p 61

[16] The Presidents military tribunal order cited the joint resolution that Congress adopted on September 18 authorizing the President to use all necessary and appropriate force against the September 11 terrorists or nations or persons who harbored them That language does not license or approve military tribunals however and the Presidents order in any case is not limited to suspected September 11 terrorists but applies to all terrorists broadly defined

[17] Tribe Trial by Fury

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[18] For a general account of the structure of fairness in the criminal process see Chapter 3 Principle Policy Procedure in my book A Matter of Principle (Harvard University Press 1985)

[19] See testimony of Ali al-Maqtari be-fore the Senate Judiciary Committee judiciarysenategovte120401f-almaqtarihtm

[20] See Justice Oversight Preserving Our Freedoms While Defending Against Terrorism a statement submitted by the American Civil Liberties Union to the Senate Judiciary Committee on November 28 2001 available at www acluorgcongress1112801ahtml

[21] The Due Process Clause might well be thought to require individualized hearings testing extended detention orders at least in the case of aliens who are lawful permanent residents of the United States and perhaps also certain other aliens See the Ninth Circuits recent decision in Kim v Ziglar Ninth Circuit Court of Appeals decided January 9 2002

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