|Joe Margulies is lead counsel for Rasul,
et al., v. Bush, et al.
Posted March 25, 2004
New Procedures Needed to Secure Rights
of Terror War Detainees, Panelists Say
The war on terror defies conventional legal structures for protecting
individual rights and requires a new procedure for holding suspected
terrorists that finds a middle ground between customary criminal justice
and prisoner-of-war rules, according to a panel of professors and lawyers
speaking at the J.B.
Moore Society’s conference on International Law and Practice
in American Constitutionalism at the Law School March 20.
“The government says the detention of terrorists is necessary
to prevent new attacks,” said Jenny Martinez, assistant professor
of law at Stanford Law School and co-counsel for Jose Padilla, a U.S.
citizen who is being held as an al Qaeda terrorist. She then asked, “How
do we fight terror and maintain the rule of law? Other countries have
come up with other processes. Where do presidential powers in this
war end? Is suspension of the First Amendment next? What are we trying
Individuals labeled “enemy combatants” do not enjoy the
rights of citizens or those of prisoners of war, she said, noting that
the term enemy combatant does not appear in any treaties, nor is it
defined in the USA Patriot Act. Meanwhile, some 700 suspected terrorists
are detained at the U.S. Naval Base at Guantanamo and three U.S. citizens,
including Padilla and Yasir Hamdi, are held in jails here. “The
issue in the Hamdi and Padilla cases is to what extent the courts have
to police the bounds of the president’s authority to detain individuals
who have an ostensible connection to the war on terrorism,” agreed
Joe Margulies, currently an attorney at the MacArthur Justice Center,
a non-profit public interest law firm at the University of Chicago
Law School. He is also lead counsel for Rasul, et al., v. Bush,
He said the United States needs “a summary but fair process
by which you can tell who is innocent from those who are properly detained.” For
now, it’s “whoever the president designates,” with
none of the traditional limits that derive from nation–versus-nation
“War powers are a departure from the settled rules of peacetime
democracy,” he said. “You can set this process up and not
interfere with military needs. The military says it is doing this,
but they haven’t done anything adequate.”
The ”exceptionalism” of the government’s argument
has no limits, he said. “My proposition is that these circumstances
require more judicial review. What is worrisome to me is that
the ordinary checks on presidential power don’t apply, they say,
because of the unique nature of the conflict.
“We are fighting an ideology.” But the experience of Israel
and Northern Ireland suggest it could be a fight of decades, he warned.
“Other democratic nations have departed from the traditional
criminal justice model—the United Kingdom, India and Israel,” Martinez
said. “Their practices are all objected to by human rights groups,
but they are still more normal than the U.S. response. Typically they
have no more than a 180-day limit on detention before prisoners must
be brought before a judge. India has abused this some.”
“The circumstances of the war on terror indicate a need for
even greater protections for individuals. Anybody could be designated
an enemy combatant, so there is greater opportunity for abuse.”
She said President Bush should go to Congress and ask for specific
powers to detain and not rely on “amorphous justifications.” Congress
approved Lincoln’s suspension of habeas corpus during the Civil
War, she noted. “This congress has not done so. I’d say
we’ve come up very short compared to other countries.”
|Brad Berenson: “What would
you do if it were your responsibility to prevent the use of a suitcase
nuclear bomb in New York or Washington?”
“What would you do if it were your responsibility to prevent
the use of a suitcase nuclear bomb in New York or Washington?” countered
Brad Berenson, who was an associate counsel to President George W.
Bush from 2001 to 2003 and now practices with the Washington, D.C.,
office of Sidley Austin Brown & Wood.
The government bases its policy on Quirin, Ex Parte, he explained.
The 1942 case involved eight captured German saboteurs who were convicted
by a military commission set up by President Franklin D. Roosevelt
and subsequently executed. The Supreme Court unanimously ruled that
the commission was justified by the president’s power as commander-in-chief
and by congressional acts authorizing military trials of those accused
of offenses against the laws of war. The Court said the prisoners had
a right to judicial review, but rejected their applications for writs
of habeas corpus and found that that they had been sufficiently charged
with unlawful belligerency.
“You can’t kill someone you capture on the battlefield,” Berenson
said. “They are too valuable as an intelligence source and too
dangerous to release. So what would you do?
“The answer came from the law of war and government legal experts
in the Departments of Justice, State, and Defense,” he continued. “The
conceptual model here is the prisoner of war model, though not in the
technical Geneva sense, because they are not lawful combatants. They
don’t have the sponsorship of a state. They do pose an existential
threat to the country.”
Existing law is very clear, he said, that aliens do not have a right
of access to American courts. U.S. citizens do have access and there
is a check on the arbitrariness of the executive--to ensure that the
case does meet the Quirin standard. He pointed out that Padilla
and Hamdi both promptly filed habeas petitions.
The role of courts “is limited and for good reason,” Berenson
asserted. “If courts were to interfere in the president’s
war powers, the . . . process of fighting would turn into one of fighting
legal sideshows. The chain of command would break down because soldiers
would worry that their actions would be challenged later in court.
“We need to get actionable intelligence now from the detainees.
The interrogation process depends on a subtle interplay of psychological
factors. Al Qaeda trains in how to resist interrogation. You have to
cut them off from the outside and create a situation of complete dependency
on you. They have to think they have no hope but to cooperate. The
minute they think they can get access to the outside world, the information
flow stops.” He said four of the detainees released so far are
known to have returned to al Qaeda.
“Suppose a car was stopped on the beltway with a dirty bomb
and a copy of the Koran and a cell phone with numbers in Pakistan.
Would you have grounds to hold the driver?” said Berenson, who
repeatedly tried to convey the predicament of the president in fighting
terrorists prepared to use weapons of mass destruction.
“The administration is not exercising any authority today that
is not well-established in law. The analogies are to the war against
the Barbary pirates or against Indian tribes in the west, who were
in fact dealt with far more harshly. The real issue is, what is the
judicial role going to be.”
• Reported by M. Marshall