September 11, 2001 : Attack on America
DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism - Statement by Philip B. Heymann Before the Committee on the Judiciary United States Senate; November 28, 2001



NOVEMBER 28, 2001

Mr. Chairman, Members of the Committee:

I am pleased to testify because the Committee is reviewing what I regard as one of the clearest mistakes and one of the most dangerous claims of executive power in the almost fifty years that I have been in and out of government. I do not say that as a civil libertarian; I have always considered public safety to be fully as relevant as democratic traditions when they really are in conflict. So my advice to members of your staff and the House Judiciary staff on the Administration's bill revised as the PATRIOT statute, was that, with some exceptions, the provisions were reasonable and often overdue. I do not have the same reaction to the President's order on military trials.

At the same time I reject as "knee-jerk" the security reactions of columnists such as George Will or the law professors he quotes, including my good friend and admired colleague, Larry Tribe. They are at least as dangerous as the thoughtless objections of those on the opposite side. I have personally seen and studied the effects of military courts in Guatemala where I later worked, and in Argentina, Paraguay, and the People's Republic of China. I have seen the fear and hatred they engender in a population and compared that to the immense appreciation and respect both our military and our courts have long enjoyed. I have watched the strained identification with us that the leaders of Zimbabwe and Egypt have based on our "shared" recourse to military courts, a step rejected by Britain, France, Germany, and Italy when they were under sustained terrorist attacks. (See Appendix A.) Knee-jerk reactions are no safer on one side of these issues than on the other.

We have a deep tradition - expressed powerfully in the Declaration of Independence - of confining military courts and secret proceedings to as small an area of necessity as possible. Only in the following circumstances have our courts allowed military tribunals to try citizens and aliens alike: where in a wartime situation there are no operable civilian courts; where, before peace is declared, there is to be a trial of wartime atrocities against the internationally recognized laws of war; where spies attached to a belligerent nation have been caught behind our lines. In all other situations they have refused, in inspired language, to depart from a legal tradition so old, so important, and so much a part of what we stand for.

There is, in short, a high Constitutional presumption of civilian trials, except in a few identified situations during quite traditional wars, recognized as such by the Congress, where we could lose our freedoms to another nation. I will not argue today whether a war on many forms of terrorism continuing until this century-long modern phenomenon is ended will, unlike a war on the murderous Colombian cartels or the Mafia, qualify as a war for the Supreme Court's jurisprudence on military trials. I doubt it. In any event, the detention provisions of the same Presidential order clearly do not satisfy the specified Constitution criteria for extra-judicial detention: "invasion or rebellion" leading Congress to suspend habeas corpus.

I don't need the heavy presumption, captured by Jefferson in the Declaration of Independence, to make my case. Nor need I refer to the last six words of the pledge of allegiance. Like almost everyone else who has studied how nations have handled terrorism, I ask only that the government consider and specify openly what are the costs and benefits of any change in democratic traditions it proposes. If Attorney General Ashcroft or President Bush had done this with regard to the importance and scope of their prospective change from civilian courts to secret military tribunals, the public would not accept the change. Certainly the Congress would not agree to it.

Let me review the benefits, costs, and inflammatory breadth of the President's order.

The benefits. The proposal will help solve whatever problem remains after more than two decades of legislation and proud law enforcement experience in dealing with the difficulties of civilian trials of terrorists and spies. The Congress has passed "extra-territorial" criminal statutes that apply stern measures to terrorism committed abroad against Americans. It has passed statutes allowing special electronic and physical searches of spies and terrorists from other countries and has just extended, in a very sensible way, their scope. Two decades ago I helped author a statute to allow trials while protecting national secrets. The intelligence investigators and prosecutors have used it with immense success. We have decades of experience in protecting witnesses. There is precedent, from the United Kingdom, that allows the conviction, as a conspirator or accomplice, of someone who has aided terrorists without proof that he had to know of the specific crime. We have on several occasions flown back to the U.S. for trial terrorists arrested by U.S. intelligence or law enforcement half-way around the world. In our courts there is no available exclusionary rule or other defense for a non-American searched or captured abroad, even if the search or arrest did not comply with the requirements of the Fourth (or any other) Amendment for searches and seizures in the United States.

Using these well-developed capacities, we have had remarkable success in trying and convicting the terrorists responsible for the bombings of the World Trade Center in 1993 and our embassies in Kenya and Tanzania. I have a hard time thinking of the prosecutorial benefits of military tribunals over civilian tribunals so fully empowered as ours, except that the military tribunals could, by selection or message from higher authority, use their secrecy, their lesser burden of proof, and the possibility of conviction by a two/thirds vote to convict without even the evidence that a jury of angry, patriotic Americans would demand.

The costs. What then are the costs of authorizing for all non-citizens indefinite detention without trial or, alternatively, a secret military trial with secret or untested evidence before a military panel chosen and evaluated by their commander, without judicial review of the adequacy of the evidence. To these must be added a possible death sentence for any of about 18 million non-citizens living in the United States (about one-third of whom may have violated their terms of entry) whenever the executive decides they have engaged, or are engaged, in terrorism related or unrelated to al-Qaeda. I will list only a dozen such costs.

(1) The authorization claims the critical powers - executive detention unreviewable in any court and secret military trials - of a police state, at the unreviewed discretion of the executive, over millions of individuals lawfully living in the United States, based on an unreviewed suspicion of unidentified forms of support of undefined political violence with an unspecific international connection. In doing so it will undermine the support and loyalty of many millions here in the U.S. and their relatives abroad. At the same time it will stifle speech and legitimate dissent among those covered.

(2) If sustained by Congress and the courts, it would create a precedent very likely to be applicable to citizens. The Supreme Court declined to draw any distinction between citizens and aliens in Ex Parte Quirin. The "military order" itself is careful to preserve the "lawful authority of the Secretary of Defense . . . to detain or try any person . . . not subject to this order."

(3) It relegates the Congress as well as the courts to a position of impotence in addressing one of the most fundamental questions about how much of our democratic tradition we will preserve. Nothing in the joint resolution of September 18, 2001, that authorized the use of "necessary and appropriate" force, remotely considers (approves or rejects) military detention and secret trials in the United States.

(4) It deprives the U.S. of its historic claim of moral leadership among the world's nations in matters of fairness to individuals, leaving us in the position of encouraging the outrages of dictators like President Mugabe. It will make more difficult future efforts at military coalition-building.

(5) It has denied us, and will deny us, the benefits of legal cooperation with our closest allies in the form of extradition and mutual legal assistance.

(6) It will create resentment, fear, and suspicion of the military, our most respected profession, undoing much of the benefits of more than a century during which the Posse Comitatus Act has protected the military from public fear and resentment.

(7) It will end a twenty-year successful effort to win respect and trust for a long-ridiculed military justice system.

(8) It undermines public confidence in the ability of our law enforcement to handle cases of international terrorism - confidence hard-earned with the patient, intelligent legislative help of the U.S. Congress.

(9) It will leave lasting doubts about the honesty of convictions in the wake of secret trials with secret evidence.

(10) It will teach American children, particularly the children of immigrants, that this is not a nation "with liberty and justice for all."

(11) If we are at "war," the President's order directly conflicts with our obligations under Article 102 of the Geneva Convention on Prisoners of War that requires trials of prisoners of war, even for war crimes, only under "the same procedure" as we use in Courts Martial of our own soldiers.

(12) Unless a secret military tribunal whose personnel are chosen and later evaluated by the executive is an "independent and impartial tribunal," it also violates Article 14 of another treaty we have signed and ratified (The International Covenant on Civil and Political Rights). A non-independent tribunal is legal only if the President determines and announces that we are in a situation "which threatens the life of the nation."

The drafting. Bypassing Congressional and judicial review, the order is drafted with an appalling carelessness as to its over-broad scope. Most citizens and commentators think that it applies only to military or terrorist leaders captured abroad who have violated the laws of war. At the President's discretion:

1. It applies within the Unites States to 18 million non-citizens and it applies throughout the world to the citizens of every nation.

2. It applies to acts committed decades ago and to persons only remotely connected to those acts.

3. It allows indefinite discretionary detention without plans for any trial, even before a military tribunal.

4. It attempts to suspend habeas corpus without Congressional action or compliance with the Constitutional requirements of "invasion or rebellion."

5. It has many applications the Supreme Court will not permit under the Court's requirement, where civil courts can operate, of a violation of the law of war. For example, harboring an ex-terrorist is not a violation of the law of war (or else our officials who have hosted leaders of other nations who fall in this category are war criminals.)

6. It allows the President to decide when a threatening form of group crime becomes a war justifying detention and military tribunals, and to exercise that authority, without Congressional sanction. Using language with the sweep of the commerce clause of our Constitution, he has exercised that judgement by applying the order to relatively minor acts of terrorism (any act that carried "adverse effects on the U.S. . . . economy") and not just to massive attacks such as those of September 11, 2001.

* * *

My conclusion is simple. It should be a proud and patriotic responsibility of the Congress to protect the people of the United States against the unnecessarily dangerous path of recourse to military tribunals and detention without trial which the President has taken in response to public fears. President Bush has said that it is our traditional freedoms that al-Qaeda, and its like, fear and envy. We must be prepared to fight for these traditions admired around the world. We must not surrender any fundamental liberty without manifest necessity and Congressional review. There is no such necessity and there has been no such review in the case of President Bush's "Military Order" of November 13, 2001.

Appendix A

Western European countries have taken cautious steps to eliminate the risks of intimidation. Germany centralized the prosecution and adjudication functions in the case of terrorism, providing special protection for those responsible. For terrorist trials, France eliminated the participation of a majority of lay individuals who act as fact-finders in felony trials, substituting a panel of judges all but one of whom is anonymous. More dramatically, trials of narco-terrorists and other terrorists in Colombia take place before a single judge whose identity is carefully hidden.

Closest to the U.S. common law tradition was the situation of Great Britain in Northern Ireland. The British ?Diplock Courts? are perhaps the most famous of the special anti-terrorism courts in operation. Lord Diplock headed a Commission to evaluate the operation of the Northern Ireland justice system when opposition to internment without judicial trial had led the government to seek alternative ways of processing court cases involving paramilitaries. He concluded that intimidation of jurors by the defendants and their colleagues and ?perverse? verdicts rendered by jurors sympathizing with the cause of the government?s opponents made jury trials impractical.

The Diplock Commission recommended implementation of special ?Diplock? courts for the trial of specified offenses such as murder, weapons offenses, bombings, and the like. Such courts are presided over by a single judge but without the normal jury. The trials have been public; defendants have had legal representation and could cross-examine witnesses against them. The standard for conviction has remained guilt beyond a reasonable doubt. Defendants have an unfettered right to appeal if found guilty. Judges are required to provide a written opinion regarding their views of the law and the facts of the case when rendering a verdict. Their reasoning can be challenged on appeal.

Britain?s attorney general is empowered to decide, at the request of defense counsel, if specific cases involving scheduled offenses should be ?certified out? as not being political in nature. Cases that are ?certified out? revert back to the regular jury trial courts. In 1995, the attorney general approved 932 of 1,234 applications for removal from Diplock Court. In that year 418 people were tried for scheduled offenses in Diplock Court and 395 were convicted (360 of these pleaded guilty). Of the 58 defendants who pleaded not guilty, 23 (40%) were found not guilty at trial.

These uses of special courts have been careful and their purpose, avoiding intimidation of fact finders, is important. But special courts always create special fears because the motivation for special courts has not always been merely to deal with intimidation. Secret courts, instituted by the military to further its purposes have been used in Guatemala, Argentina, Chile, and elsewhere. The purpose was less to deal with threats than to assure that the fact finders would be sympathetic to the views of the government.


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