War on Liberty
By The Hon. Richard B. Sanders
Justice, Washington Supreme Court
Delivered April 4, 2007
International Section of the WSBA
Seattle, Washington
On September
11, 2001,
President Bush addressed the nation telling us “Freedom itself was attacked this morning by a faceless coward, and
freedom will be defended.”
In his speech to the joint session of
Congress on September 20, 2001, he said, “I ask you to uphold the values of America, and remember why so many have come
here. We are in a fight for our
principles and our first responsibility is to live by them.” And then he added, “The advance of human
freedom . . . now depends on us.”
Yes, Mr. President, I could not agree
more. “We are in a fight for our principles and our first responsibility is to live by them.”
Shortly after so addressing the
Congress of the United States, the President proposed the USA Patriot Act which was approved
overwhelmingly with little or no debate.
Following this enactment the
President announced his “War on Terror” making it clear the battlefield was not
only Afghanistan but everywhere, even, or should I say especially, here in the
United States.
Not to digress, however we should
note though the Patriot Act passed by overwhelming margins in Congress, it was
subjected
to
increasing popular criticism. So much
so, in fact, that Attorney General John Ashcroft took it upon himself to do a
nationwide speaking tour in its defense.
I understand he even traveled to a third grade classroom to sing the
praises of the Act after which he opened up the floor to questions.
A third grade boy raised his
hand. General Ashcroft called on him,
saying please give us your name and state your question. The boy replied, “My name is Bobby and I have
two questions. If Gore got more votes
than Bush, why isn’t Gore President? And
why are you trying to take away our liberty with the Patriot Act?”
At that precise moment the recess
bell rang and all the children trooped out of the classroom like Pavlov’s
dogs. Fifteen minutes or so later they
returned. General Ashcroft was still
there. He told the children that he said he was going
to answer their questions and that’s what he intended to do although he didn’t quite have as
much time as before.
A little girl raised her hand. General Ashcroft asked her name and her
question. She replied, “My name is Mary
and I have four questions. If Gore got
more votes than Bush, how come Gore isn’t President? Why are you trying to take away our liberty
with the Patriot Act? Why did the recess bell ring fifteen minutes
early? . . . and Where’s Bobby?”
Well, back to the War on Terror. I doubt if we’ll be hearing from Mary again.
Since all wars up to this point in
time were by and between nation states, one would have thought that this “War on
Terror” was a metaphor since terror is a tactic, neither a country nor even an
individual. A metaphorical war, unlike a
real war, is a war that has no end by definition. Lyndon Johnson declared a war on
poverty. Richard Nixon declared his war
on drugs. Others have declared their own wars on illiteracy, disease,
and what have you. All of these wars
continue as, to paraphrase the scriptures, the poor will always be with us.
But there was something fundamentally
different about the War on Terror from all of the metaphorical wars which
preceded it: this one was an effort to
invoke presidential war powers not only to deal with a foreign adversary, such
as Afghanistan or Iraq, but to deal with private citizens here and abroad in
the context of executive war powers as well as the international laws of war
memorialized by practice and treaties. For the War
on Terror, all the world is a battlefield and every person is potentially a
combatant and perhaps a war criminal as well.
In response to President Bush’s War
on Terror, I propose we consider a metaphorical War on Liberty.
Where, How, and When would this war be fought?
What would be the strategic objectives of this war? What would be the tactics of the offense and
defense? How would the prisoners be treated, or are
prisoners to be taken at all?
Well, to get on with our metaphorical
War on Liberty if I were the Commander in Chief, my strategic objective
would be the destruction of all legal impediments to my freedom of action. In fact I would want to sell this war by
talking about freedom all the time, which is not really a misrepresentation
since, of course, it is my freedom, not yours, that we are talking about.
In the same vein, of course, I would not want to overtly declare a War on Liberty, but certainly a War on something,
because we all understand that Wars are sometimes essential for self-preservation and the necessary sacrifice entailed in
all wars include the truth, liberty, lives, and property. We are even more likely to accept the costs
of war when our President tells us “defeat is not an option” and calls on true
patriots who believe “these colors don’t run” in time of war.
Our founding fathers did not view war
lightly. They fought and survived a very
bloody war. They knew the terror of war,
the cost of war in lives and fortune, in human suffering, in injustice to the
innocent—which we euphemistically now call collateral damage, the title of an
Arnold Schwarzenegger movie. James
Madison explained the meaning of this principle embedded in our Constitution:
Of all the enemies to liberty war is, perhaps, the most to be dreaded,
because it comprises and develops the germ of every other. War is the parent of armies; from these
proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the
domination of the few. In war, too, the
discretionary power of the executive is extended; its influence in dealing out
offices, honors, and emoluments is multiplied; and all the means of seducing
the minds, are added to those of subduing the force, of the people.[1]
We remember with shame the
imprisonment of American citizens of Japanese ancestry by President Roosevelt
and other so-called liberals like Earl Warren under the war powers. And we must be concerned that a poll taken shortly after the
events of September 11, 2001, revealed that fully one-third of our fellow
citizens would support imprisonment of Arab Americans as we once did the Japanese Americans.
Our founders knew the popular
passions of war, and the sometime political advantage of it. As President Bush said, principles must come
first. And Alexander Hamilton set down
one of the most fundamental principles for conducting our War on
Liberty:
Safety from external danger 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 to 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
less free.[2]
So these are some of the tactics
President Sanders might use should I be the commander in chief of our War on
Liberty:
fear and secrecy for starts.
Although our national anthem ends
with the words Land of the Free and Home of the Brave, you and I know that
these words are there because they rhyme, not because they are American
realities. History proves this.
At the end of the 18th Century,
tensions rose between the United States and France.
The Federalists seized upon the opportunity to pass the Alien and
Sedition Acts which largely criminalized internal opposition to our own
government. Of course, the American
Civil War was the occasion for massive suspension of civil liberties, including
writ of habeas corpus; World War I brought us mass arrests to combat the Red
Scare; and World War II yielded the imprisonment of 117,000 loyal Americans with no
legal process.
At least in the early years of our
republic an effective remedy to
executive and legislative excess was the last resort to an independent
judiciary. Although the Alien and
Sedition Acts expired by their own terms before judicial review was possible,
Chief Justice John Marshall then serving in Congress announced his view that
they were unconstitutional and should be set aside.
Near the beginning of the American
Civil War, President Lincoln purported to authorize the arrest of individuals
without charge by military officials.
On May 26, 1861 at 2:00 a.m. in the morning, the military
arrested John Merryman while he was peacefully in his Baltimore home with his family and then took him to
Fort McHenry for confinement under the general
charges of treason and rebellion, but absent any proof of same. Notwithstanding a purported presidential
suspension of the writ of habeas corpus, the United States Court of Appeals
observed
that the
writ may only be suspended by Congress, not the President, and then only in cases of rebellion or
invasion for a limited time. Chief Justice
Taney[3] held, in no uncertain terms, in favor of Merryman’s
release:
I can only say that if the authority
which the Constitution has confided to the judiciary department and judicial officers, may thus, upon any
pretext or any circumstances, be usurped by the military power at its
discretion, the People of the United States are no longer living under a
Government of Laws but every citizen holds life, liberty, and property at the
will and pleasure of the army officer in whose military district he may happen
to be found.
Ex Parte Merryman, 17 F. Cas. 144, 152, 1 Taney 246 (C.D. MD. 1861).
Until that point Congress had never suspended the writ of habeas corpus, even in the War of 1812
where the British actually sacked Washington D.C. and burned down the White House. But Congress did suspend the writ of habeas corpus in 1863 during the height
of our civil war. This resulted in the
arrest of Lambdin Milligan who on October 5, 1864 while at his home in Indiana was arrested by military order and thereafter kept in closed confinement. On the 21st day of that same month, he was
brought before a military commission
in Indianapolis, tried, found guilty, and sentenced to be hanged.
Thereafter in January 1865, a grand jury was convened to consider whether civilian charges should be
brought against Milligan, but it failed to return any bill of indictment against him for any
offense whatsoever. Acting through a
writ of habeas corpus, notwithstanding congressional suspension of the writ,
Milligan challenged his confinement and death sentence. Eventually the case made its way to the
United States Supreme Court which opined,
The importance of the main question
presented by this record cannot be overstated; for it involves the very
framework of the government and the
fundamental principles of American liberty.
Ex Parte Milligan, 71 U.S. 2, 4 Wall. 2 (1866). “Had this tribunal the legal power and authority to try and punish this man?”
rhetorically asked the Court, elaborating,
No graver question was ever considered
by this court, nor one which more nearly concerns the rights of the whole
people; for it is the birthright of every American citizen when charged with
crime to be tried and punished according to law. . . . By the protection of the
law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited
people.
The
Court went on to observe the provisions of the Constitution “on the
administration of criminal justice are too plain and direct, to leave room for
misconstruction or doubt of their true meaning” to permit this trial by
military tribunal.
The Court continued:
The Constitution of the United States is a
law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine, involving
more pernicious consequences, was ever invented by the wit of man than that any
of its provisions can be suspended during any of the great exigencies of
government. Such a doctrine leads directly
to anarchy or despotism, but the theory of necessity on which it is based is
false . . . .
The
Court held that civilians cannot be tried by the military when
the civilian courts are open to hear criminal accusations and redress
grievances.
Obviously the precedent set by Ex Parte Milligan must be undermined if we are to successfully
prosecute our War on Liberty. Some
headway was made in that regard in the early days of World War II in Ex Parte Quirin, 317 U.S. 1, 63 S. Ct. 1 (1942), where the Supreme
Court entertained a writ of habeas corpus on behalf of several German
saboteurs, one of whom was also an American citizen, who had been tried and
most of whom were sentenced to be hanged by a military commission sitting in
Washington D.C. notwithstanding the civilian courts were open. History
reveals that President Roosevelt had previously personally and secretly
consulted with his Supreme Court justice Felix Frankfurter before he established the military commission which rendered the death sentence.
To characterize In re Quirin as a hurry up offense on the part of the
government would be an understatement since the death sentence was affirmed by
per curiam order issued the
day after oral argument only a few days after it had been rendered by military
commission, with narrative opinion to follow after the execution had actually
taken place. Recently Justice Scalia
characterized the In re Quirin decision as “not this Court’s finest hour.”[4]
I suspect our War on Liberty will also be aided by Korematsu v. United
States,[5] a
1944 decision which failed to provide relief to American citizens of Japanese
origin who were imprisoned during the course of World War II.
Based upon unexamined claims of national security
the court denied relief although history has shown not only these claims to be
false but deliberately fabricated by government lawyers. Certainly Korematsu is another case useful to prosecute our War on
Liberty. Trust me,
I’m from the government.
Let us fast-forward to more recent events.
American citizen Jose Padilla was arrested as he
disembarked from an airplane at Chicago’s O’Hare Airport to be detained for a
short period of time by civilian
authorities before being shipped off to the Navy brig in South Carolina where
he was held for years incommunicado without charge, without lawyer, based
solely upon an executive allegation that he was an unlawful combatant. When it appeared that his writ of habeas corpus would be determined
on the merits by the United States Supreme Court, the government reversed
course, released him from the brig, and indicted him to stand trial in federal court on charges unrelated to the claim under which he was previously held in
the brig involving reconnaissance to detonate a “dirty bomb.”
Last summer the United States Supreme Court heard
and decided the case of Hamdan v. Rumsfeld[6] Hamdan was apprehended in Afghanistan and apparently turned over to American authorities
for a bounty. A Yemeni citizen, it is
alleged that Hamdan was an illegal combatant because he
conspired to violate the laws of war by offering material
support to Al Qaeda, which is to say he was Osama Bin
Laden’s chauffeur. He was held at
Guantanamo Bay. Then by
executive order he was to be put on trial before a military commission for war crimes.
The Supreme Court then considered the validity of the military commission convened to try Hamdan for war crimes. The Court found that Congress had not authorized such a commission
and that, even assuming the President had authority to
establish a commission under appropriate circumstances, that commission would
have to operate under the Uniform Code of Military Justice.
Unlike the UCMJ, however, commission rules provide
the accused and his civilian counsel might be excluded from, and otherwise
precluded from ever learning what evidence was presented during the closed
proceeding. The accused need not be
informed of the basis of his detention while hearsay and evidence derived from
torture are admissible.
Notably, a majority also found that the procedures adopted to try Hamdan violated the Common Article 3 of the Geneva Conventions which
prohibit the passing of sentences and the carrying out of executions without previous
judgment pronounced by “a regularly constituted court affording all the
judicial guarantees which are recognized as indispensable by civilized people.”
Seemingly Hamdan hit a home run, however not
really. He avoided trial for the time being before a military
commission, but the Court confirmed the Presidential authority to keep him incarcerated
for the duration of “the War.”
Not to be deterred, the President promptly went to
Congress which willingly enacted the Military Commission Act granting the President
authority to convene a similar military commission while at the same time
purporting to strip all alien prisoners any right to seek a writ of habeas
corpus. Just last month the D.C. circuit
considered Boumediene v. Bush,[7]
which, on a two to one vote, dismissed the prisoner’s petition for writ of habeas corpus on
this ground. On April 2, 2007, the United States Supreme Court on a six to three
vote, denied cert.
Speaking for myself, I find these recent developments most encouraging for our
War on Liberty. The
President and Congress have joined hands to deny aliens held by executive fiat
any access to the judiciary to test the legality and conditions of their
confinement. And the courts have apparently demurred. Even more encouraging news comes from an A.P.
account of March 27, 2007, which begins,
A federal judge says
despite horrifying torture of U.S.
prisoners alleged to
have been committed in overseas prisons during former Defense Secretary Donald
H. Rumsfeld’s tenure, his position in the government shields him from being
sued.
The lawsuit contends
the prisoners were beaten, suspended upside down from the ceiling by chains,
urinated on, shocked, sexually humiliated, burned, locked inside boxes, and
subjected to
mock executions . . . .
So I suppose this answers one of my
other posited questions—we will take
prisoners in this kinder and gentler era.
Dostoyevsky observed: “The degree of civilization in a society can
be judged by its prisons.” But this may
be difficult since many prisons are secret and for those that we know about UN
investigators are not allowed to speak to the prisoners.
And interrogation techniques are now closely held state secrets. So when the administration says we don’t
torture as a matter of policy, we are not allowed to know what we do do—and then judge for ourselves. Secrecy is a useful tool to avoid criticism
and accountability. Another plus for our
War on Liberty!
According to
American University’s Professor Robert Vaughn:
Authoritarian
governments are identified by ready government access to information about the
activities of citizens and by extensive limitations on the ability of citizens
to obtain information about the government.
In contrast, democratic governments are marked by significant
restrictions on the ability of government to acquire information about its
citizens and by ready access by citizens to information about the activities of
government.
Robert G. Vaughn, Transparency
the Mechanisms: Open Government and
Accountability, in Issues of
Democracy, an electronic journal of the U.S. Department of State (Aug. 2000).
Despite these encouraging events, the
War on Liberty is not yet won and
for this reason we must be vigilant. We
must be vigilant that Congress not withdraw its cooperation with executive
authority. We must be vigilant that
courts not permit access to persons claiming protection for their legal rights
and entitlements under the laws of this country, including our treaty
obligations. But most of all, we must be
vigilant that the American people continue their fearful slumber until this War
on Liberty is successfully prosecuted to its conclusion because, as observed
by Judge Learned Hand, the people are the ultimate “decider” when it comes to
their liberty.
What do we
mean when we say that first of all we seek Liberty? I often
wonder whether we rest our hopes too much upon constitutions, upon laws, upon
courts. These are false hopes, believe
me, these are false hopes.
Liberty lies in the hearts of men and women; and when it dies
there, no constitution, no law, no court can save it.
I say to you, that is our best hope
to win the War on Liberty:
Kill our love for it through fear of an unknown enemy. George Orwell could have written this script.
* * * * *
Endnotes
1.
James
Madison, Political Observations (April
20, 1795).
2.
Alexander
Hamilton, The Federalist Papers No. 8
(Nov. 20, 1787).
3.
Sitting
by designation.
4.
Hamdi v. Rumsfeld, 542 U.S. 507, 569, 124 S. Ct. 2633 (2004).
5.
Korematsu v. United
States, 323 U.S. 214, 65 S. Ct. 193 (1944).
6.
-- U.S. --, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006).
7.
476
F.3d 981 (D.C. Cir. 2007).