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Within yards of the Boston Marathon bombing, the American Bar Association Section of Litigation sponsored on Saturday the Annual Meeting panel “From Guantanamo to Boston: The War on Terror and the Rule of Law,” focusing on the inherent friction between terror and the law, due process rights, free speech and assembly, and protections against invasions of privacy and other governmental incursions.
The war against terrorism has put into conflict two tenets of the American constitutional tradition. The first denies the government the power to imprison anyone unless that person is charged with a crime and offered a speedy trial. The other requires the government to abide by the Constitution’s restrictions on its power no matter against whom it acts.
Making use of video and panel debate, the interactive program explored whether our responses to terrorist activity have strained the rule of law to the breaking point. The panelists focused on five subject areas: the National Security Agency, drones, Guantanamo (and its 149 prisoners from 19 countries), the criminal justice system and criminal sentences.
R. Alexander Costa, dean of the Florida International College of Law and once a clerk to Samuel Alito when Alito was a judge on the 3rd Circuit Court of Appeals, said that there is a common thread in terrorism-related issues:
“You have the tension between government authority and government responsibility on the one hand, and on the other hand the expectations in a democratic society that such actions will have the support of the citizenry.”
“These are not typical prosecutions. The NSA or drones or Guantanamo are very difficult conundrums that need to be decided not only by the executive branch but also by the legislative branch.”
Costa, also a former U.S. attorney, asked one of the fundamental questions the panel considered: “What is privacy, and how do we balance that against law enforcement’s needs?”
Philip B. Heymann, a Harvard law School professor who served in the State and Justice departments under presidents Kennedy, Johnson, Carter and Clinton, authored in 2003 “Terrorism, Freedom and Security: Winning without War,” in which he argued that diplomacy, intelligence and international law should play a larger role than military action in our counterterrorism policy, and that instead of waging “war” against terrorism, the United States needs a broader set of policies.
Today’s challenges are relatively new, according to Heymann, and he said they come down to recreating a balance between privacy and surveillance in the age of terrorism, what he termed “a difficult issue of law and privacy.”
In response to whether we have enough checks and balances to ensure privacy, Heymann said, “In an ordinary investigation there are probably enough checks….I think the checks are inadequate with the government gathering immense amounts of information. The most prominent example is the NSA. …That’s too much information to have unless there’s a very good reason for it, and there’s not a single case that’s been helped by such bulk information gathering.”
Panelist Rachel Brand of the Privacy and Civil Liberties Oversight Board noted the multiple layers of oversight that the NSA has, and said, “The EPA, for example, doesn’t have anywhere near the level of oversight that the NSA has, but added that “there is room for more transparency.”
Moderator Lawrence D. Rosenberg, a partner at Jones Day in Washington, D.C., is a litigator and was the court-appointed appellate counsel for Adham Hassoun, who was convicted of terrorism-related charges involving Jose Padilla. Rosenberg asked if drones are in some way an alternative to the detentions at Guantanamo.
Pardiss Kebriaei, a senior attorney at the Center for Constitutional Rights in New York City, pointed out that many of the United States’ drone attacks are against individuals in countries such as Yemen or Pakistan, where we are not engaged in hostilities. The panelists agreed that self-defense was a better justification for drone attacks than as an extension of armed conflict and against “associated forces.”