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January 01, 2007

Defending Liberty and the Rule of Law After September 11

by Mark D. Agrast

Forty years ago, the Section of Individual Rights and Responsibilities (IRR) was created to ensure that the American Bar Association (ABA)—the voice of the American legal profession—is not silent when civil rights and liberties are under assault. That voice has never been more necessary than in the nearly six years since the terrorist attacks of September 11, 2001.

In the wake of those attacks, President George W. Bush has claimed sweeping powers to detain suspected “enemy combatants” indefinitely, with no meaningful opportunity to challenge the grounds for their detention; to try these detainees under special military procedures that fail to provide due process of law; to subject the detainees to highly coercive interrogations that violate U.S. and international prohibitions against torture and cruel, inhuman, and degrading treatment and punishment; and to deliver terrorist suspects into the hands of countries in which our government has reason to believe they will be tortured. The president has sought enhanced powers to seize the personal records of U.S. citizens without probable cause that the records pertain to persons engaged in terrorism or espionage, and he has issued secret orders authorizing electronic surveillance without a warrant within the United States. He has claimed the power to disregard U.S. treaty obligations prohibiting the mistreatment of captured enemies, as well as laws he himself has signed reaffirming those obligations.

All Americans recognize that strong measures are required to secure our nation from the threat of international terrorism. But these presidential actions have not made us safer. On the contrary, they have undermined the constitutional system of checks and balances that enables Congress and the courts to conduct effective oversight of counterterrorism activities, and they have weakened the international system of rules that protect American servicemen and servicewomen when they are captured abroad. By calling into question our nation’s fundamental commitment to the rule of law, the president’s actions have cost America the support of millions of people around the world who had wished us well in the aftermath of the terrorist attacks.

For the first five years after 9/11, those who voiced concerns about these matters found themselves on the defensive as they sought to avert draconian legislation. The elections of November 2006 brought a change in control of both houses of Congress, and with it an opportunity to reevaluate the direction of U.S. counterterrorism policies, both at home and abroad. The 110th Congress has moved quickly to reassert its role in overseeing the activities of the executive branch and has begun to consider changes to the laws enacted since 9/11 that can enhance both our liberty and our security.

Addressing the challenges posed by the president’s actions also has been a prominent part of the work of IRR. It is largely as a result of that work that the ABA has emerged as a leading voice on such issues as the establishment and conduct of military commissions, the detention of enemy combatants, the use of coercive methods of interrogation, and foreign intelligence surveillance within the United States. Section leaders have spearheaded ABA policies that address these concerns and worked to advance these policies in Congress, the courts, and the executive branch.

Military Commissions

On November 13, 2001, Bush issued a military order providing for the detention and trial of terrorist suspects by military commissions. In February 2002, the ABA House of Delegates approved a resolution sponsored by IRR calling upon the government to ensure that detainees would not be subject to indefinite pretrial detention and that the procedures for trials and appeals would be governed by the Uniform Code of Military Justice (UCMJ). The resolution further urged that trials comport with the procedures set forth in Articles 14 and 15(1) of the International Covenant of Civil and Political Rights, to which the United States has been a party since 1992.

This resolution was the basis of comments that the ABA provided to the Defense Department on the proposed procedures for trials by military commissions. As released in March 2002, however, those procedures fell far short of the standards of procedural fairness required under the UCMJ. The rules denied detainees even such basic guarantees as the right to be present at their trials and to have access to the evidence against them. Moreover, the rules permitted the government to introduce coerced testimony and other unreliable evidence.

In June 2006, in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the U.S. Supreme Court held that the proposed military commissions failed to meet the minimum standards required by the UCMJ and Common Article 3 of the Geneva Conventions, which provides that wartime detainees may not be sentenced or executed unless they have been tried “by a regularly constituted court, affording all the judicial guaranties which are recognized as indispensable by civilized peoples.”

In response to Hamdan, Congress passed the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (MCA), which authorizes the trial by military commission of “enemy combatants,” so broadly defined as to include even persons not alleged to have engaged in armed conflict or to have had roles in planning or executing terrorist acts against the United States. Although the procedures set out in the MCA track the UCMJ more closely than had the rules struck down in Hamdan, they still deviate from customary military procedures in disturbing ways, permitting, for example, the use of certain evidence against a detainee that was obtained through coercion if a judge finds the evidence “reliable.”

As of May 2007, the validity of the MCA procedures under constitutional and international norms remains untested; no military commission trials have yet been convened, and no court has yet considered whether the procedures meet the minimum standards the Court announced in Hamdan. Legislation pending in the current Congress would amend the MCA to narrow the definition of “unlawful enemy combatant” and bar the use at trial of evidence gained through coercion, but its passage faces considerable odds, given the majority’s narrow margin in the Senate and the likelihood of a presidential veto if it is passed.

Detention of Enemy Combatants

The IRR’s efforts to ensure that terrorist suspects receive a fair trial grow out of its longstanding commitment to due process for citizens and noncitizens alike. That commitment to due process also has led the Section to play a prominent role in efforts to restore the writ of habeas corpus for post–9/11 detainees.

In February 2003, the ABA House of Delegates approved a resolution sponsored by IRR, together with the Criminal Justice Section and the newly created Task Force on Treatment of Enemy Combatants (chaired by current IRR Vice-Chair Neal Sonnett), that urges that U.S. citizens and other U.S. residents detained within the United States as enemy combatants be afforded an opportunity for meaningful judicial review of the reasons for their designation as combatants, that they not be denied access to counsel to help them seek and obtain that review, and that Congress establish clear standards and procedures governing the designation and treatment of U.S. citizens and residents as enemy combatants.

That policy formed the basis for IRR-sponsored ABA amicus curiae briefs before the Second Circuit Court of Appeals in Padilla v. Rumsfeld, 352 F.3d 695 (2003), and before the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The briefs argue that due process and fundamental fairness require that a U.S. citizen designated as an enemy combatant and detained by the executive within the United States must be afforded, at a minimum, a meaningful opportunity to challenge the basis for his detention before an independent judicial officer, with access to counsel to assist him in making that challenge; and that the government must substantiate the basis for the detention under a meaningful standard of review. Although Padilla was not resolved on the merits in the Supreme Court, a plurality of the Court in Hamdi accepted a key portion of the argument: a U.S. citizen detained as an enemy combatant is entitled to a hearing before an impartial tribunal to contest the factual basis for his detention.

The question of whether non-U.S. citizens captured abroad and incarcerated as enemy combatants at Guantanamo Bay may challenge their detention in U.S. courts was answered in Rasul v. Bush, 542 U.S. 466 (2004), in which the Court rejected the government’s contention that U.S. courts lack jurisdiction to consider habeas corpus petitions from foreign nationals challenging the legality of detentions.

In June 2004, the Pentagon responded to these Court decisions by instituting administrative proceedings, known as Combatant Status Review Tribunals (CSRTs), to review the status of the more than 500 detainees then held at Guantanamo.

The CSRTs are nonadversarial proceedings that afford a detainee only a limited opportunity to contest the factual basis for his enemy combatant designation. He is assigned a military officer to act as his “personal representative” and is permitted to present evidence and witnesses that are “reasonably available”—difficult to do several years and thousands of miles from the events that led to his capture. The CSRTs are not bound by ordinary rules of evidence, and the evidence presented by the government is presumed to be genuine and accurate.

The problematic nature of the CSRTs makes it essential that a detainee be able to seek habeas corpus review of the reason for his detention. Yet in December 2005 Congress enacted the Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680 (2005) (DTA), strongly opposed by the ABA, that strips U.S. courts of jurisdiction to consider habeas applications brought by Guantanamo detainees. Section 1005(e) of the act provides that once a CSRT confirms the president’s designation of a detainee as an enemy combatant, the detainee’s only opportunity to contest the designation is a very limited and highly deferential review by the U.S. Court of Appeals for the D.C. Circuit.

In its June 2006 Hamdan ruling, the Supreme Court held that the DTA did not strip the federal courts of jurisdiction over habeas cases pending before the DTA’s enactment. Four months later, Congress responded to that decision by enacting the MCA, Section 7 of which denies the courts of jurisdiction to consider any application for a writ of habeas corpus or any other action brought by a detainee “who has been determined by a CSRT to have been properly detained as an enemy combatant or is awaiting such determination.”

In February 2007, a 2–1 majority of the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of Section 7, concluding that the Guanta-namo detainees have no constitutional right to habeas corpus, and on April 2, 2007, the Supreme Court denied certiorari in the consolidated cases of Boumediene v. Bush and Al Odah v. United States, 476 F.3d 981 (D.C. Cir.), cert. denied, 127 S. Ct. 1478 (2007). In June 2007, however, the Court reversed itself and granted certiorari in both cases, which will now be argued in the late fall.

Meanwhile, Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) and Representatives Jerrold Nadler (D-NY) and Jane Harman (D-CA) have introduced legislation to restore habeas corpus for Guantanamo detainees. The bills may well garner the support of a majority in both the House and Senate, but it is uncertain whether proponents could defeat a potential filibuster that could prevent a vote in the Senate or could override a possible presidential veto if Congress does approve the measure.

It is clear that many of the people detained at Guantanamo were never a danger to the United States and should have been released long ago. Yet the United States continues to hold more than 350 prisoners there. Only ten of these persons have been charged with any crime, and not a single one has been brought to trial.

Treatment of Detainees

In 2004, press reports revealed that U.S. military personnel had engaged in torture and degrading treatment of prisoners captured and held in U.S.-operated facilities overseas, including the infamous former Iraqi prison at Abu Ghraib. It also was reported that the government had employed the practice known as “extraordinary rendition” to send suspected terrorists to third countries, where they were subjected to torture. Perhaps most disturbing of all were revelations that even as lawyers with­in the State Department urged compliance with laws and treaties that prohibit these practices, the Justice Department was devising arguments to evade them.

In August 2004, the ABA House of Delegates approved a resolution cosponsored by IRR condemning these practices and urging the government to comply fully with applicable laws and treaty obligations under the Geneva Conventions and the Convention against Torture. The resolution also urged the establishment of an independent, bipartisan commission to investigate and make recommendations concerning the detention and interrogation practices carried out by the United States.

As enacted in 2005, the DTA included an amendment, authored by Senator John McCain (R-AZ) and strongly supported by the ABA, affirming as U.S. law the international treaty prohibitions on torture and cruel, inhuman, and degrading treatment. Although Bush originally opposed the amendment, he ultimately signed the legislation when it became clear that supporters of the law had sufficient votes to override a presidential veto. Generally unknown at the time, however, was the fact that when the president signed the bill, he also issued a “signing statement” reserving to the executive branch the right to disregard the amendment language. The White House backed away from the signing statement position following intense criticism.

But subsequently, during negotiations over the MCA in 2006, Bush sought inclusion of provisions in that legislation to redefine U.S. obligations under the Geneva Conventions to permit the use of “alternative interrogation procedures” that violate the conventions’ standards for humane treatment of detainees. The Congress refused to accept such language. Indeed, the MCA reinforces the international standards by prohibiting “grave breaches” of the Geneva Conventions and making it a criminal offense under the War Crimes Act to intentionally subject detainees to serious physical or mental pain or suffering.

This language should be sufficient to bar, once and for all, the use of waterboarding, induced hypothermia, prolonged stress positions, mock executions, extreme sleep deprivation, and other cruel and inhumane interrogation techniques prohibited not only by the Geneva Conventions but also by the U.S. Army’s newly revised interrogation manual. Although the MCA itself does not mention these specific techniques, Senator John Warner (R-VA), the chief Senate sponsor of the MCA, made clear when urging other senators to vote for the measure that such procedures “are in the category of grave breaches of Common Article Three [of the Geneva Conventions and] are clearly prohibited by the bill.”

The legislative history could hardly be clearer. But Congress, human rights advocates, and the ABA must be vigilant in ensuring that the administration does not exploit any ambiguities in the legislation to continue to engage in these prohibited practices.

Domestic Surveillance

Since 9/11, IRR also has presented a series of resolutions to the ABA House of Delegates that address another critical element of the government’s counterterrorism efforts: the use of domestic surveillance.

In February 2003, the ABA House approved an IRR-sponsored resolution urging Congress to conduct regular and timely oversight of the government’s use of the Foreign Intelligence Surveillance Act (FISA) and to adopt amendments to the statute to ensure that investigations do not violate the U.S. Constitution.

In August 2003, the ABA House approved an IRR-sponsored resolution opposing efforts to repeal provisions of the USA PATRIOT Act that would “sunset” certain of the act’s surveillance authorities on December 31, 2005. The resolution also urged Congress to conduct a thorough review of the implementation of powers granted to the executive branch under the act before considering legislation that would further expand those powers. Finally, the resolution urges the executive branch to cooperate with the congressional committees of jurisdiction to ensure that they have timely access to all information they require to fulfill their oversight responsibilities with respect to the act.

The thorough review of the PATRIOT Act’s implementation called for by the ABA has yet to take place, but the 110th Congress has begun to take a serious look at the Bush administration’s use of some of the more controversial provisions of the act. Meanwhile, the administration’s attempts to expand its PATRIOT Act powers have been largely unsuccessful. When Congress reauthorized the act in 2006, it included a four-year sunset in the sections that authorize the use of so-called roving wiretaps and permit court-ordered access to business records and other “tangible things.” Thus far, there is no indication that either provision has been subject to serious or systematic abuse.

The same cannot be said, however, regarding the section of the PATRIOT Act authorizing the Federal Bureau of Investigation (FBI) to conduct searches of telephone, e-mail, and financial records without court orders through the use of national security letters (NSLs). The FBI was permitted to issue NSLs before 9/11 but only in cases where it could show that the records sought pertained to terrorists or spies. The PATRIOT Act relaxed that requirement, authorizing the agency to obtain records pertaining to any person if the records are deemed “relevant to” a national security investigation. The act also expanded the number of persons within the FBI who are authorized to issue NSLs and the kinds of information NSLs can be used to obtain. A March 2007 report by the Justice Department’s Inspector General detailed dozens of cases in which the FBI misused this authority.

But whatever abuses of the PATRIOT Act may have occurred, they pale in comparison to those of the government’s new massive program of warrantless domestic electronic surveillance. On December 15, 2005, the New York Times reported that the president had “secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying.” These revelations provoked legal challenges and calls for congressional action. To develop the ABA response, then ABA President (and past IRR Chair) Michael Greco appointed an ABA Task Force on Domestic Surveillance, chaired by Neal Sonnett, on which I served along with former senior intelligence officials, former members of Congress, and a former director of the FBI.

In February 2006, the Section joined with the task force in bringing a resolution before the House of Delegates opposing foreign intelligence surveillance within the United States that does not comply with FISA and urging Bush to seek amendments to FISA if he believes that he needs additional authority to protect national security. The resolution, which was approved overwhelmingly, also urged Congress to conduct a comprehensive investigation into the domestic surveillance program, called the Terrorist Surveillance Program (TSP) by the administration.

Armed with this policy, the ABA actively opposed legislation proposed during the 109th Congress that effectively would have ratified the TSP, giving either the Foreign Intelligence Surveillance Court or the Select Committees on Intelligence the authority to grant blanket approval to the program, and effectively repealing FISA’s requirement that the government seek a warrant based on a particularized showing of probable cause that the target of the surveillance is a terrorist or spy.

None of these measures became law before the 109th Congress adjourned, and despite continued pressure from the administration to enact “FISA modernization” legislation, there is little prospect that the new Congress will make significant changes to the statute—at least until Congress has conducted a thorough examination of the TSP and any similar programs that have yet to be disclosed.

Dual Challenge

The 9/11 attacks confronted America with a dual challenge: to contain the threat of terrorism and to do so in a manner that upholds the freedoms and the rule of law that define our nation. History will record that the ABA did not stand silent in the face of this challenge. Thanks in large part to the work of IRR, it spoke out clearly and consistently in defense of American values. And with the Section leading the way, it will continue to do so in the years to come.

Mark D. Agrast

Mark D. Agrast, a senior fellow at the Center for American Progress in Washington, D.C., chaired the ABA Section of Individual Rights and Responsibilities from 2002 to 2003. He currently represents the Section on the ABA Board of Governors and serves on the Executive Committee of the Board.