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Stephen Trott
Justice, U.S. Court of Appeals 9th Circuit
As terrible as September 11, 2001, was, our enemy intended it to be far worse. It's little wonder that on September 18, Congress authorized the president as our commander in chief "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Effectively and appropriately, Congress has declared war. But this is a war that we have not encountered before, unlike the declared wars of the last century involving Germany and Japan. We launched the current war not only against an enemy in a faraway place, but also against an enemy hiding inside the borders of the United States - an enemy that attacks our civilian population. Given what we know, can any of us believe that had bin Laden and his forces had a nuclear weapon, anthrax, nerve gas or any other weapons of mass destruction at their disposal, they would not have used it?
It's for these obvious reasons that we've asked our law enforcement and intelligence operations to focus more on the prevention of crimes that have not yet happened rather than on just solving the ones that have. One's instincts for survival would be in question if we did not endorse this preventative approach. But as is always the question, especially in a nation governed by the rule of law, is, How do we do it? And the second question is, To what extent, and for how long, do we have to recalibrate our notion of our civil liberties? Prevention requires law enforcement and intelligence agencies to gather information about people: what they are saying, with whom they are associating, what they are reading and writing, what they believe and what they have in their residences. This raises the specter of domestic spying and covert surveillance, which in years past have been anathema to what we believe in and to what we regard as our civil liberties. The U.S. prides itself in freedom of religion and in the acceptance of all nationalities and backgrounds, yet the idea of prevention is complicated by the religious pronouncements of this enemy and by their nationalities. How do we respect our values and track this particular enemy at the same time?
The principles that distinguish us from the rest of the world, principles from which we must not stray, are engraved in the Bill of Rights. When we read the First and Fourth Amendments, there is no doubt that there is potential for tension between the Bill of Rights and the need to collect, survey and to find preventative information. But the genius of our Constitution is that it is marvelously and reasonably adaptable to almost any circumstance. The Supreme Court has acknowledged there is an emergency exception to the Fourth Amendment warrant requirement that permits law enforcement without a warrant to enter a building in an exigency: for example, a kidnapped child, being held someplace by a child molester. The Constitution does not say you have to leave the child in that building until you go find a judge in the middle of the night. The Fourth Amendment seizure provisions even permit law enforcement to shoot a fleeing felon who has demonstrated without a doubt that they are a danger to that community or to society. Even the Miranda rights, which we're all aware of from every television show, have a public safety exception. If you arrest someone knowing that somewhere there's a child who is in danger, you do not have to tell that person, "You have the right to remain silent before you talk to us." The public safety exception says because of the pressing need to save that life, you can go ahead and ask this person some questions without getting in trouble with Miranda.
Our Constitution embraces war as a constitutionally appropriate measure of collective self-defense. It's mentioned any number of times in the Constitution. The touchstone of many of our constitutional guarantees is a two-sided coin: What is the need and what is reasonable? Those questions can only be answered by circumstances. We would do well to remember the wise words of Supreme Court justice Robert Jackson, also the chief prosecutor at Nuremberg of the Nazis for war crimes after World War II: "The Constitution is not a suicide pact." But how far do we go?
Even Torture
Suppose you are the head of the FBI and your chief special agent reports that he has intercepted a terrorist over the telephone talking to another terrorist in Washington, D.C., and the person you have just arrested has ordered the detonation of a dirty nuclear bomb in our nation's capital. Your chief agent tells you the problem is we don't know who this person we have arrested was talking to or where that person is. We don't know where the bomb is; all we know is that it's going to go off within 24 hours. Your agent tells you that there is an exception to the Miranda rule for circumstances like this, and you don't have to tell this terrorist before you talk to him that he has the right to remain silent or to consult with an attorney. He asks for permission to torture the terrorist until the terrorist tells you who the bomber is and where this nuclear weapon is. Do you tell your chief agent to prevent the extinction of Washington, D.C.? Or do you remember what the Supreme Court said in Rochin v. California, that any method that shocks the conscience violates due process and cannot be used in law enforcement? This is a hypothetical, but it takes on a certain air of reality after September 11, 2001.
Interestingly, Alan Dershowitz, the great civil libertarian, has suggested not only that torture in a ticking-bomb case would be constitutionally appropriate, but that we should also authorize federal judges where appropriate to entertain applications for torture warrants. Dershowitz believes that the FBI shouldn't make the decision by itself; it should go to a federal judge and apply for official permission to torture the terrorist to find out where the bomb is. He says, "An application for a torture warrant would have to be based on an absolute need to obtain immediate information in order to save lives, coupled with probable cause that the suspect had such information and is unwilling to reveal it. The suspect would be given immunity from prosecution based on information elicited by the torturer. The warrant would limit the torture to non-lethal means such as sterile needles stuck under his fingernails, inserted to cause excruciating pain without endangering life." Some people think this sounds wacky. If you were the head of the FBI, it might not sound wacky to you in a worst-case scenario.
Does this torture-warrant proposal require us utterly to abandon who we are as explained in our Constitution? We twice dropped atomic bombs on civilian populations in order to end World War II so that American citizens wouldn't have to die storming that island. In this war, is it wrong to torture a single madman in order to save our nation's capital from devastation? Is it wrong to monitor the Internet, to find out who's communicating with whom, to send agents to public meetings where they have reason to believe the terrorists may be congregating? Is it a civil liberties issue? Also a self-defense issue? Who will give the order to shoot out of the sky the next airplane full of American citizens that has been commandeered by an Al Qaeda group and appears to be on the way to a target in the U.S.? I am not sure what the answers are, but the way the government is set up, ultimately the people make the decisions by way of elections and by way of the decisions of our elected officials.
Given this backdrop, the U.S.A.-Patriot Act is regarded by many as only a minimal threat to our civil liberties; a small cost compared to the potential benefits. Congress enacted this law, which stands for Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001, a year ago on October 26. Its objective was to authorize the executive branch on our behalf to gather information about possible terrorists and possible terrorist attacks, mostly under the supervision of the federal judiciary. All four traditional tools used to gather information - wiretaps, search warrants, telephone tracing orders and subpoenas - were enhanced to accomplish this objective. The act acknowledged recent changes in technology. We were ten years behind cell phones in figuring out who was talking to whom about what. This change allowed electronic warrants for the first time to follow a person, not just a place. Terrorists spend half their time figuring out a way to try to stay out of our way; this act enhances our power to go and try to find them. Without information, there can be no prevention. I ask anybody to tell me how we can prevent these kinds of crimes if we cannot find out who they are, where they are, what they are thinking, with whom they are associating and what they are up to.
Had the Capitol gone down on September 11, is it possible that our military leaders would have unleashed nuclear weapons against Afghanistan? Prevention has larger dimensions than simply stopping another terrorist attack. The world, because of nuclear weapons, is in jeopardy. There is a different dimension to trying to stop these things before they start.
In World War II, we simply grabbed every person in California of Japanese ancestry - American citizens, who had committed no crimes - interned them and took away their property. Now we know that was a mistake. At the time people didn't think it was a mistake. The loudest voice for the internment was the great civil libertarian, Chief Justice Earl Warren, when he was still in California. In an ironic moment the loudest voice against the internment of the Japanese was J. Edgar Hoover, regarded now by many as an enemy of civil liberties. The point of good surveillance and information is that it reduces the understandable anxiety and emotion that cause people to go out and grab everybody.
Most of the provisions of this Patriot Act that people are talking about will expire on December 31, 2005, unless reenacted by Congress. This wise deadline gives us time to see if we really do need these extra measures; whether they are being used appropriately or whether they are being abused by the executive branch. The judiciary and Congress will be looking over the executive branch's shoulder to make sure that we're doing the right thing.
Then there is the question of enemy combatants. We are picking people up, locking them behind closed doors, and it's becoming very difficult to find out who they are or why they are locked up. Out of the case of Nazi saboteurs during World War II comes the principle that the president as commander in chief is the one who is designated to identify enemy combatants and send them toward military rather than civil tribunals. Is that a dangerous proposition, to reside in one individual that possibility? The writ of habeas corpus remains alive because the Supreme Court along the way has said, and said in the case of the Nazi saboteurs, that the courts remain open and that people even under those circumstances have the right to go to federal court and require the government to show that there's a lawful basis to hold them in custody.
In the final analysis, we will work our way through these challenges as we have for 200-some years, by relying on our Constitution, the rule of law and our core values. We have the best system ever devised for handling these challenges and for correcting errors we make along the way. Our principles involve freedom of speech and debate, a free and aggressive press, separation of powers and checks and balances to make sure that one aspect of government does not get out of control. The purpose of our Bill of Rights is to check our emotions with our intellect, with our principles and the review of all government action by an independent judiciary, sworn to protect and uphold the law. Using this flexible and accommodating mechanism, we will prevail.
