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).