LAW AND ORDER: Civil Liberties and the War on Terrorism

Friday, September 27, 2002

Does the war on terrorism threaten our civil liberties? Benjamin Franklin famously admonished, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Are we today being asked to give up essential liberties for temporary safety? If so, is it worth it? Or are the fears that the government's war on terrorism will trample our freedoms overblown?

Recorded on Friday, September 27, 2002

Peter Robinson: Today on Uncommon Knowledge, civil liberties and the war on terrorism. How much should we pay for the Bill of Rights?

Announcer: Funding for this program is provided by the John M. Olin Foundation and the Starr Foundation.


Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today, the war on terrorism and our own civil liberties. A few months ago on this program, Gore Vidal quoted the famous admonition by Benjamin Franklin: "They who would give up an essential liberty for temporary security deserve neither liberty nor security." Are we today being asked to give up essential liberties to achieve merely temporary security or are the fears that our civil liberties are being eroded by the war on terrorism, overblown?

With us today, two experts on constitutional law. Erwin Chemerinsky is a professor of law at the University of Southern California and Eugene Volokh is a professor of law at the University of California at Los Angeles.

Title: Heaven Can Wait

Peter Robinson: Judge Richard Posner: "Lincoln's unconstitutional acts during the Civil War show that even legality must sometimes be sacrificed for other values. The slogan fiat justitia ruat caelum, 'Let justice be done though the heavens fall' is dangerous nonsense." Erwin?

Erwin Chemerinsky: We are a nation of laws. We should only compromise laws at the greatest of urgency and I don't think we've seen any justification of the kind of compromise we've had over the last year.

Peter Robinson: Eugene?

Eugene Volokh: I agree that we can have it both ways. We can have justice be done and the heavens not fall. What I disagree with is about how much compromise there has been in the laws. I don't think there's been much. I think by and large, the law has been followed although in some respects a somewhat different law than usually prevails in peacetime.

Peter Robinson: Okay. Let's begin by going back a little more than a century. Let's take the point of departure that Posner takes which is Lincoln and his unconstitutional acts. During the Civil War, Lincoln suspends the writ of habeas corpus, detains more than 13,000 people without bringing them to trial or even providing evidence against them. Lincoln's defense--preserving habeas corpus would have meant allowing, now I quote Lincoln, "all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated." In principle, did Lincoln do right, Eugene?

Eugene Volokh: You know, it's difficult--I'm not a historian of the Civil War but one thing that's interesting is that everybody agrees that Lincoln was perfectly entitled to hold enemy soldiers without providing them with lawyers or a trial or whatever else. They were prisoners of war. They were enemy combatants detained. So…

Peter Robinson: But on the larger question of holding citizens, 13,000…

Eugene Volokh: Well and they were citizens. They were citizens of the U.S. albeit ones who were in rebellion. So I think that quite a few, as I understand it, of the detentions were probably unjustified but others were. So it's important to realize it's not all a question of can you detain people.

Peter Robinson: Unconstitutional or unjustified?

Eugene Volokh: Well, again I'm not a historian in the Civil War but there were some who essentially were northern critics of the war effort who were exercising their First Amendment rights in an environment where there were still elections that were going to be happening where criticism of the government was important. So some of them were unjustified and unconstitutional.

Peter Robinson: Okay. Erwin?

Erwin Chemerinsky: The United States Supreme Court in a case called Ex parte Milligan ruled that what Lincoln was doing was unconstitutional. The president under the Constitution doesn't have the authority to suspend the write of habeas corpus. Only Congress has that power. Moreover the court in Milligan said, so long as there are courts of the United States available, these individuals should be brought to court. There's no indication that we were really made safer by what Lincoln did.

Eugene Volokh: Well, the Supreme Court said that with regards to certain of the detentions but, at the same time, the bottom line isn't that the president may never detain people during wartime. Nobody doubted Lincoln's power to detain prisoners of war. Nobody doubted Lincoln's power to detain enemy combatants without a trial again, without lawyers being provided. So it's important not to try to draw too general a principle out of it, that certain kind of American civilians may not be detained without due process but enemy combatants may be.

Peter Robinson: I just want to establish this kind of--I have the feeling that you agree in principle and it's a question of weighing specific instances where you disagree. But I want to make sure of that. Let me quote Posner again and get you both to agree or disagree with this statement. Posner argues that in war--in the war on terrorism as during the Civil War, our civil liberties, "should be curtailed to the extent that the benefits in greater security outweigh the cost in reduced liberty. All they can reasonably ask of the responsible officials is that they weigh the costs as carefully as the benefits." You'd go for that?

Erwin Chemerinsky: I disagree with that.

Peter Robinson: You disagree with that in principle?

Erwin Chemerinsky: Because the Supreme Court has said individual rights are not absolute but the government has to have a compelling interest to interfere with those rights. If what Posner is saying is when you do the weighing, the government has to show that taking away free speech rights or other rights is necessary to achieve the compelling purpose, then I'd agree. But Posner seems to be describing much more of an even balancing and to that I strongly disagree.

Peter Robinson: Oh, I see.

Erwin Chemerinsky: And to that I strongly disagree.

Eugene Volokh: I don't think these questions can be answered at this level of abstraction.

Peter Robinson: You don't?

Eugene Volokh: Should you balance with a thumb on the scale or two thumbs on the scale or compelling interest or reasonableness. That's something that cannot be said at that level of generality. In fact in constitutional law, the strict scrutiny test and narrow tailoring to compelling interest test that Erwin described applies to some rights but not to other rights. Fourth Amendment rights are subject to more of a reasonableness balancing. They're also traditional historical exceptions for which you don't need to balance such as the power to detain prisoners of war. So I think we have to look at the specifics and not at the general.

Peter Robinson: Let's indeed move onto the specifics beginning with the issue of secret hearings.

Title: Behind Closed Doors

Peter Robinson: Ten days after September 11th, Michael Creppy, the nation's chief immigration judge, issued orders for what would turn out to be more than 600 so-called special interest immigration cases, closing the hearings in such cases. I quote the judge, "The courtroom must be closed, no visitors, no family and no press." How come? Because according now to an FBI spokesman, "Bits and pieces of information that may appear innocuous in isolation can be fit into a bigger picture by terrorist groups." So on the theory that as hundreds of hearings go forward, bits and pieces of information could be put together that would be useful to terrorists; the hearings were shut down. Was that done correctly?

Erwin Chemerinsky: Absolutely not. The three courts…

Peter Robinson: Absolutely not?

Erwin Chemerinsky: The three courts to rule so far, a federal district court in New Jersey, a federal district court in Detroit, and the United States Court of Appeals for the Sixth Circuit, have held that the Creppy memo is illegal. Federal regulations require openness of immigration proceedings. The requirement should be that the government should need to show in a specific case the need for closure. The Sixth Circuit said blanket closure immigration proceedings violates the First Amendment. Judge Damon Keith said, "Democracy dies in secret."

Eugene Volokh: Well, this is again the importance of focusing on specifics.

Peter Robinson: Right.

Eugene Volokh: We talk about civil liberties versus security, well the question is is there a civil liberty involved? And the Supreme Court has said that the First Amendment provides very limited rights of access. You can say what you want to say but you don't have access to government proceedings. The one exception the Supreme Court has really strongly recognized is access to criminal trials. Immigration proceedings are generally not criminal trials.

Peter Robinson: Administrative rather than criminal?

Eugene Volokh: Exactly. So the question that comes up is for First Amendment purposes, are immigration proceedings to be treated like criminal trials, is there to be a right of access to it? And one subsidiary question there is has there been a historical tradition of that? I think there's a lot of historical debate as to whether there has been but note the focus in this. So far until September 11th, there had been no holding certainly from the Supreme Court saying there's a First Amendment Right of access to immigration proceedings. The question here isn't do we restrict--reduce our First Amendment rights during wartime, the question is do we expand them by for the first time having the Supreme Court recognize a right of access to immigration proceedings. And I…

Peter Robinson: So Creppy did right. As far as you're concerned, this notion that you close those immigration hearings doesn't bother you at all?

Eugene Volokh: Well no, it actually bothers me as a policy matter. I think as a policy matter, it probably is not a good idea to close hearings and there should be a more careful scrutiny of that. As a First Amendment matter, I think a lot depends on historical questions. I think that there are some close calls but the important thing is it's not like wow, all of a sudden we're now restricting traditionally understood First Amendment rights. There has been no traditionally understood First Amendment right of access.

Peter Robinson: Let me ask--on your behalf actually, well sort of on your behalf--so Erwin here says that the government has to show specific reason in each case why a hearing should be closed. And if the government presumably has a compelling enough case, you'd be willing to close the hearing?

Erwin Chemerinsky: Yes.

Peter Robinson: However--so as a general rule, you buy that?

Eugene Volokh: That's how he interprets the First Amendment and then he…

Peter Robinson: Does that strike you as sound?

Eugene Volokh: Well, that's not the way the First Amendment has been interpreted so far by the Supreme Court. Maybe the Supreme Court will say what we said about criminal trials, we should also for the first time apply to immigration hearings. But again the question is, do you extend this rather limited right of access that's been secured in the past--by the First Amendment? Do you extend it to also apply to immigration rights?

Peter Robinson: Well Erwin, let me turn that on you then. We're talking about so far in this one instance of the terrorist attack that produced 600 immigration cases. So the notion that the government would have to show case by case by case why these hearings should be closed, would have imposed in time of crisis an immense additional administrative burden on the FBI or whoever--or--excuse me, the relevant authorities, let me put it that way.

Erwin Chemerinsky: The fact that the government said there were 600 cases I think supports my side. It's quite doubtful that very many of these involved people who were linked in any way to terrorism but the government's just imposing blanket secrecy. When Eugene and I…

Peter Robinson: But it's easy enough to understand the impulse isn't it? We've just had a terrorist attack. The thing--you close down the hearing until you find out where you stand.

Erwin Chemerinsky: But the question is what do we lose by closure? What we lose is the ability to monitor what's going on. We have star chamber-type proceedings. Where Eugene and I disagree is Eugene would say we define the right only by what the Supreme Courts address. I would say we know there's a right to openness because there's a long history of open immigration proceedings. There's a federal regulation on the books that requires open immigration proceedings. And also every court in the country that's dealt with whether there's a right to open civil proceedings has said that what the Supreme Court says about criminal proceedings extends there as well. So I do think this is a narrowing of a right that existed before September 11th.

Peter Robinson: And a reasonable narrowing because there was a terrorist attack. To cite precedent after precedent--things changes when the World Trade Towers are turned into cinders.

Erwin Chemerinsky: If you could show there's a need for closure, then close the proceedings but blanket closure is an overreaction.

Peter Robinson: Okay.

Eugene Volokh: One difficulty is especially when you're talking about a national security and especially when you're talking about a great uncertainty, it's hard to prove that there's a need under traditional standards of proof. There are often a lot of imponderables. They're often a matter of presumptions and people who specialize in national security might say, you know, this is what we think is probably likely but we can't prove this.

Peter Robinson: On to the next case, freedom from unreasonable search and seizure.

Title: One Assize Fits All

Peter Robinson: Under the Patriot Act, this new piece of legislation passed after September 11th, the government may now search and seize Americans' papers and effects to assist in investigations of terrorism and do so without probable cause. The Patriot Act alters the search rules in that it allows the FBI to delay notification of searches, second point, whenever notification would seriously jeopardize an investigation abrogating the usual knock and announce rule. So what we have here is the government's allowed to move in in a way that it wasn't allowed to move in before if it's investigating terrorism. Is that reasonable or unreasonable?

Erwin Chemerinsky: You said two different things.

Peter Robinson: Right.

Erwin Chemerinsky: As to the former, I think eliminating the probable cause requirement is a violation of the Fourth Amendment. The Patriot Act…

Peter Robinson: Just flatly unconstitutional.

Erwin Chemerinsky: Absolutely. Where the Patriot Act allows people to be detained for seven days on reasonable suspicion that they've engaged and assisted terrorism, that violates the Fourth Amendment. There's no case in history that has ever allowed arrest without probable cause. There's no case in history that's ever said in terms of police searches of the sort you're talking about without probable cause.

Peter Robinson: Administratively, how difficult is it--how time consuming, how difficult is it to demonstrate probable cause?

Erwin Chemerinsky: It's not very much at all. There's even the ability to get warrants showing probable cause over the telephone. Now as to the second thing that you said, the ability of the police to enter without knocking and announcing, I don't see that as a problem. The Supreme Court when it said that generally the police have to knock and announce, recognized an exception if there's exigent circumstances, reasons in that case to do away with knock and announce.

Eugene Volokh: But you asked originally about search of papers. The Patriot Act does not abrogate generally the requirement of probable cause for searching of people's papers. Generally in order to search people's papers you still need probable cause and you need a warrant if they're in the home. Now…

Peter Robinson: What about this detention matter that Erwin just touched…

Eugene Volokh: I'm sorry, let me just clarify this. There was some broadening of powers having to do with surveillance of supposed foreign agents. And there under some conditions if you're talking about an agent of a foreign government, there might be probable cause of those searches. But for U.S. persons, people who are citizens of the U.S. and some others, the probable cause requirement still remains as to searches. As to detentions, I believe Erwin is talking about provision having to do with detention of non-citizens on immigration charges. And there there are actually interesting questions, to what extent it is permissible to detain on immigration charges even for very brief times based solely on reasonable suspicion. And that has to do in some measure, with what greater powers the federal government has with regard to non-citizens. Now in some respects I'm actually agreeing with Erwin that this is problematic. That is, when I first read the Patriot Act, in fact, the one thing in the Patriot Act that did strike me as somewhat problematic but again it's important to recognize the magnitude of this. This is only applicable for a relatively short time. It's applicable to non-citizens and while I think it's very important to respect rights of non-citizens, I was one once myself, my family and I are immigrants, the protection offered to citizens is an important constraint in federal power. The Fourth Amendment was, in part, enacted in order to keep the federal government from trying to suppress domestic dissent. And the fact that this exception is quite limited makes it a limited threat.

Erwin Chemerinsky: Can I disagree with one thing and that is you said that the Patriot Act preserves probable cause for searches. There are instances where it doesn't. For example, it allows the federal government to monitor somebody's use of the computer. The email addresses they send to or receive from the websites they visit by showing a federal judge is "relevant to a criminal investigation," not even reasonable suspicion and certainly not probable cause.

Eugene Volokh: That's right. But you say preserves. It preserves the preexisting rule. Traditionally ever since--certainly was recognized by the Supreme Court I believe in 1979, you need probable cause in order to search the contents of communications but you don't need probable cause in order to, for example, to record the telephone numbers that somebody has called. The same thing I think applies to email addresses. So even there the Patriot Act maintains the existing traditions. Now you might disagree with those traditions but it does not make any sort of radical break in that respect.

Peter Robinson: So I feel a slight frustration with both of you alas, which is that when you say well it's unconst--blah, blah, blah--but then when it comes to well I don't know if the act goes far enough, it seems to me that you've both granted to some--you more grudgingly but you quite directly, that the reasonableness or unreasonableness has to be measured against the immediacy and gravity of the threat, right? So you have to develop some notion of how much danger the government faces and certainly the first recourse in developing that notion is to the government itself. They've been investigating the matter.

Erwin Chemerinsky: I'm not willing to defer so quickly to the government. The Fourth Amendment prohibits unreasonable searches and seizures. What's reasonable does require looking at context. The First Amendment as Eugene mentioned says that the government can interfere with even the most fundamentally important speech if it's narrowly tailored or achieve a compelling interest. Well what that is requires looking at context. Where Eugene and I, I think strongly disagree is how minimal or how extensive the infringement of rights has been since September 11th a year ago.

Peter Robinson: Let's examine one more case study, the designation of enemy combatants.

Title: Judging Hamdi

Peter Robinson: Yasser Hamdi, a Saudi national captured in Afghanistan, is probably an American citizen by virtue of having been born in Louisiana. The government declared him an enemy combatant, a status that permitted the government to detain him without counsel. Judge Robert Doumar of the Federal District Court in Norfolk, Virginia has twice ruled that Hamdi is entitled to a lawyer. The government he said, "Could not cite one case where a prisoner of any variety within the jurisdiction of the United States District Court was held incommunicado and indefinitely." But a three-judge panel of the Appeals Court blocked Judge Doumar's order. The panel wrote, "The authority to capture those who take up arms against America belongs to the Commander-in-Chief." Erwin?

Erwin Chemerinsky: I think one of the most outrageous things the Bush Administration has done is claim that by designating a person, even a citizen, an unlawful combatant, they can hold the person forever with no access to the courts. They're doing that not only to Hamdi but also to a man by the name of Jose Padilla, unquestionably an American citizen, arrested Chicago O'Hare airport for planting a dirty bomb. What the administration is saying is they get to be the jailer, the prosecutor, the judge and the jury. All of the protections of the Bill of Rights in terms of requiring a judge to approve that there was probable cause for us, a grand jury to prove that there's a basis for trial, a jury to convict are being suspended by the Bush Administration.

Eugene Volokh: I actually have something I think of an intermediate position here. I wouldn't go so far as the Bush Administration goes. But at the same time we have to understand the basic rule, which is that enemy combatants may be held for the duration of the war without trial, without juries, without grand juries. I mean this was done for enemy combatants, prisoners of war by the hundreds of thousands during the Civil War and during other wars as well. Now where I think the Administration is mistaken is in denying any possibility of court oversight of the preliminary question of whether the person is an enemy combatant. And I do think it makes sense that for people especially who are captured within the U.S., the Padilla case, that if somebody files a habeas petition, the court would--habeas corpus petition, the court would determine whether he's an enemy combatant.

Peter Robinson: In this--let me add something. In this Hamdi case, the government at length agreed to give the judge, under seal, a list of the criteria that the government used in designating Hamdi an enemy combatant but said that the judicial branch had no right to oversight even of establishing the criteria that the government used. So the government is saying, the executive branch is saying, we get to name whoever is an enemy combatant on any criteria we choose. That does not strike you as excessive?

Eugene Volokh: No, that can't be right, in part, because then they could say well, we don't like what Erwin is doing, he must be in cahoots with the terrorists.

Peter Robinson: Right.

Eugene Volokh: Enemy combatant. But at the same time--I would especially with regard to people who are captured in a foreign country and especially in a battlefield, where there's very good reason to think that they're enemy combatants, the government should have very broad latitude for that and I think the most that the court should be able to do is inquire into whether there's enough evidence the person is an enemy combatant. Once that's so, at that point the person stops being subject to civilian jurisdiction and is subject to military jurisdiction.

Peter Robinson: How does that strike you?

Erwin Chemerinsky: I certainly think that's far preferable to the Bush Administration approach because the Bush Administration approach would say they could designate Erwin Chemerinsky or Eugene Volokh and say you're an enemy combatant, we're going to hold you forever. I think the problem is that I don't think it goes far enough in providing for procedural protection, as the constitution requires. And when you're dealing with people who are caught on foreign battlefields, then it's a question of international law. And International law is quite specific. For example, with regard to those who are being held in Guantanamo, they're entitled to a hearing by an independent tribunal to determine if they're prisoners of war or enemy combatants and depending on the status, different rights attach but not…

Eugene Volokh: Not a civilian tribunal.

Erwin Chemerinsky: I didn't say a civilian tribunal. I said they're entitled to a tribunal under international law. The Bush Administration is not even providing that.

Eugene Volokh: Certainly we have to remember if somebody's subject to the military, it's not that there's no justice system. There is a military justice system and, in fact, indeed with regard to certain contested questions whether somebody is an enemy combatant or not, there may be military tribunals that are offered to this. But with regard so far as the U.S. Constitution goes, I think the extent of what people are entitled to--if they're captured in the U.S. and maybe in some doubtful situation overseas, to determine whether they're enemy combatants or not.

Peter Robinson: Last question, how much do we really have to worry about?

Title: War Games

Peter Robinson: Under the pretext of the Cold War, we know that J. Edgar Hoover's FBI got up to quite a few nasty pranks, establishing files and spying on people from Hugh Hefner to Martin Luther King, Jr. Right? Does anything you have seen done by the Bush Administration or proposed by the Bush Administration make you queasy that the government under pretext of the war on terrorism might in some similar way abuse its powers?

Eugene Volokh: I do think that the detention of people as enemy combatants without any sort of civilian oversight is the one thing that I do think is troubling. There may be some justifications even for that but it is something that I think liberals as well as conservatives are in considerable measure, troubled by. But at the same time, free speech is protected much more than it has been in past wars from Civil War to World War I and on. Our other liberties are quite seriously protected. It's certainly right for us to look closely at what the government is doing but at the same time, there's real reason to hope that we can have it both ways. We can maintain our civil liberties in mostly unchanged status and, at the same time, win this war.

Peter Robinson: Erwin, for you. Listen to a brief litany, all right, from American history. Last couple years of the eighteenth century, we're afraid of war with France, John Adams enacts the Alien and Sedition Acts, severe restriction of liberties. He gets tossed out in the election of 1800 and the liberties are restored. Civil War, Lincoln suspends habeas corpus, the Civil War ends, habeas corpus is reinstated. First World War, Woodrow Wilson signs Sabotage and Sedition Acts. People get tossed into jail. War ends, civil liberty is restored. Second World War, FDR interns more than a hundred thousand Japanese, an action that wasn't even considered controversial until a generation after it had taken place, today an internment is unthinkable. The point I'm trying to suggest is that in times of crisis, the nation does restrict civil liberties but the underlying reasonableness of the American people being what it is, when the crisis pass, the civil liberties are restored. So what are you worried about?

Erwin Chemerinsky: I'm worried about just those kind of examples in history repeating itself. Under the Alien and Sedition Acts, people spent years in prison for ineffectual speech criticizing the government. During World War I, individuals…

Peter Robinson: Eugene Debs would have been crushed to hear you call it ineffectual but go ahead.

Erwin Chemerinsky: In World War I, Eugene Debs went to prison for ten years just for saying to an audience, "you're good for more than cannon fodder." During World War II, 120,000 Japanese-Americans were uprooted from their lifelong homes and placed in what Franklin Roosevelt called concentration camps. The fact that ultimately they were released didn't deny that there was a tremendous injustice done and a violation of the Constitution. What I see in the last year is we're repeating these worst aspects of American history, taking away rights of many in the guise of a war on terrorism, even though it's not making us any safer. Not only the enemy combatants, what about the hundreds who are being held on trumped up material witness warrants? We don't even know how many are being held or how long. What about the Attorney General repealing the restrictions on the FBI that were adopted exactly after the abuses that you had talked about? What about the blanket secrecy in the immigration proceedings? What about provisions of the Patriot Act we didn't get to that put our privacy in jeopardy?

Peter Robinson: Can I just ask you a question in principle really? How can you possibly say in this lovely series of rhetorical questions, what about this, what about that, what about this, without on the other hand saying what about the possibility of an attack here? In other words, you're not even beginning to do what Posner said must be done which is some weighing--you must have some notion of how grave the terrorist threat is before you can say whether these restrictions have been reasonable or not, don't you?

Erwin Chemerinsky: But it can't be that just because there's a very grave threat, anything the government wants to do on civil liberties becomes acceptable. I would be glad as we've done in this half hour to go through each of these examples and say, I think what the government has done is compromise basic rights but in these instances, those compromises haven't made us any safer.

Peter Robinson: I see. Okay. Erwin, Eugene, thank you very much.

Eugene Volokh: Thank you.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge, thank you for joining us.