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.

* * * * *


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).