Dan Rather Reports
Episode Number: 223
Episode Title: The Constitution in Question
Description: A panel of legal thinkers debate the different views of executive power and
the Bush Administration in the aftermath of 9/11.
Transcript:
ANNOUNCER
Tonight, from the Benjamin Cardozo Law School at Yeshiva University in New York
City, a special edition of Dan Rather Reports: “The Constitution in Question: Presidential
powers in war time,” a panel discussion recorded in front of a live audience with
prominent attorneys who have been part in the sweeping changes in civil rights instituted
by the Bush administration after 9/11. We will later be joined by legal scholars. And now
here is your host, Dan Rather.
DAN RATHER
Good evening. And welcome to “The Constitution in Question,” a debate and panel
discussion sponsored by The People for the American Way Foundation, which asked me
to be your moderator for tonight. Our host for this evening is Yeshiva University's
Benjamin N. Cardozo's School of Law located here in New York City. 9/11 and President
Bush's pursuit of the war on terrorism had not only remade American foreign policy;
these forces had also lead to what, at least some would say, is a seismic shift in how the
executive branch of our government interprets the United States Constitution. Alongside
news of battles, we've become accustomed to headlines about military tribunals and
warrant less wire-tapping, about the definition of torture and the status of quote
"unlawful" enemy combatants. These headlines reflect the Bush administration’s
expansive view of presidential authority. Particularly in times of war.
ANNOUNCER
We will begin tonight by discussing the noteworthy Supreme Court decision of Hamdan
vs. Rumsfeld. When U.S. forces attacked Afghanistan after September 11th, one of the
many detainees swept up and shipped to the detention center in Guantanamo Bay, Cuba
was Salim Hamdan, a Yemenite citizen and former driver for Osama Bin Laden. In 2004
Hamdan was charged with conspiracy to commit terrorism and brought before a military
commission. But he challenged the legality of those tribunals. The Supreme Court ruled
last year that President Bush did not have the power to single-handedly establish those
tribunals. It was a precedent setting rebuke of the administration’s claims to extensive
executive powers in the wake of 9/11. This begs the question at the heart of tonight's
discussion.
DAN RATHER
Are the administration’s actions consistent with the actions of presidents past or not?
President Lincoln suspended habeas corpus during the civil war. And wartime presidents
such as F.D.R. and Harry Truman have tested the bounds of executive authority in times
of war. Or do the current constitutional battles, like the war on terrorism itself, represent
something new? How far does and how far should presidential power go? And, what are
the implications with the civil liberties of all Americans? These are some of the questions
we’re here to debate and discuss tonight with our distinguished panel of guests
representing a range of views on these subjects. Our hope is that you, the viewer, will
come away from this evening with a better understanding of what are some fairly
complex issues. To help us explore the central legal debate in the fight against terrorism,
we have with us Bradford Baranson, who served as Associate Council to President Bush
in the aftermath of 9/11 when this question was first being asked, and Lieutenant
Commander in the U.S. Navy, Charles Swift, a naval JAG lawyer who successfully
argued against the Bush administration detainee policy in the Supreme Court case of
Hamdan vs. Rumsfeld. Now, um, Lieutenant Commander Swift, how did you get
involved in your client, who was he, and what was there about him and the case that
made you, in the end, challenge directly the defense department?
LIEUTENANT COMMANDER CHARLES SWIFT
Well I didn't come to Washington until March of 2003 when I was called up and told that
there would be a military commission for persons in Guantanamo Bay, uh, and it was
gonna go in the next couple of weeks and I needed to report immediately. I was
principally a criminal defense attorney and military commissions were a relic of 1945.
They were not commonplace in the American, in the judicial system. So I read all of the
precedences and I started to look at the law for, and I began to understand some of the
claims that were being made and I certainly believed we were at war on, right after
September 11th, certainly when our forces went into Afghanistan. I understood as a
military officer that's war. But one of the first claims that really struck me when I got
there was that military commissions historically had not been that much different then a
court marshal. The entire procedures for trial harkin back to something that you might
have found during Oliver Cromwell’s time and not during the United State's period. That
is, as trial without the accused present, the ability to put in evidence that had been
obtained by coercion, you could write down, “He did it,” on the back of a napkin and
admit that. Um, the procedures were nothing that I was at all familiar with, so when Mr.
Hamdan's name showed up I became very interested in him because, inside the law of
war he presented an interesting problem. You see, no one accused him of actually bearing
arms. No one accused him of actually having been part of any plot. No one accused him
of killing anyone. What he'd done was drive around Osama Bin Laden as his driver. Now
right before I chose Hamdan I’d been watching a special on television, a historic special,
and one of the people they'd interviewed was Adolph Hitler's driver. (laughter) And he
wasn't tried in Nuremburg, strangely enough. No one seemed to think that he was the
cause of the holocaust. Yet, Mr. Hamdan was now the cause of 9/11. And so I thought
this is the case we should test it with.
DAN RATHER
Mr. Baranson, were you aware of this at the time?
BRADFORD BARANSON
I wasn't aware of the specifics of any particular case. I was involved in the preparation of
the Military Order of November 13th of 2001 by which the president authorized the
secretary of defense to stand up military commissions for purposes of trying war
criminals affiliated with Al Qaeda. But the specific decisions about whom to try and what
charges to bring against them, that was all handled outside the White House.
DAN RATHER
Had you heard of Mr. Hamdan before, knew that he was a driver of Osama Bin Laden?
LIEUTENANT COMMANDER CHARLES SWIFT
Not until the file came over from prosecution and they asked that the chief defense
council detail council for a guy named Salim Ahmed Hamdan. Now the letter was a little
different then most that I’d ever seen in that it said that the purpose of having council was
to negotiate a guilty plea. And, well, sometimes the government does want an attorney
for a guilty plea that did not strike me as that odd. What really struck me was odd was
that my access to Mr. Hamdan was contingent on the guilty plea. So you know I was
gonna go down, wear a uniform and explain to the guy that yes I’m your attorney and you
need to plead guilty and if you don't plead guilty you'll probably never see me again, so
what's it gonna be? And I had real issues with the ethics of that as an attorney.
DAN RATHER
Personal question: when you took this case, you were assigned this case, were you?
LIEUTENANT COMMANDER CHARLES SWIFT
Yes I was.
DAN RATHER
Did the thought enter your mind that it might be a career breaker?
LIEUTENANT COMMANDER CHARLES SWIFT
Yes, but not for the reason you think. What it would say is that I would be unobserved for
3 years. Actually if you’re in the military and somebody gives you a job where you'll be
unobserved for 3 years, it's gonna be a lot of fun and you better like the position you’re in
cause that's where your staying.
DAN RATHER
You’re not gonna get promoted?
LIEUTENANT COMMANDER CHARLES SWIFT
It would hurt, yes. So to do it and do it right, I knew would take me out of a competitive
cycle.
DAN RATHER
I'm gonna go back to what you described was, at least in effect, if not explicitly stated to
you, that you could see your client provided he agreed to confess. Now to someone who
might have been thinking at the time or may still be thinking, “You know what,
Lieutenant Commander Charlie? We’re at war. There are people who hate us, there are
people who are looking to destroy us, and that's not a bad way to go because we need to
squeeze these people and squeeze them hard and squeeze them in a hurry. To find out
what they know what they don't know.” Did that thought enter your mind?
LIEUTENANT COMMANDER CHARLES SWIFT
Actually no and I’ll tell you why. Uh one of the first cases I read was Quirin. It's about 8
German saboteurs who came to the United States during World War II. At the very
beginning at 1942, the United States was about as unprepared as we were the day on
September 10th. The coast guard asked these 4 guys coming out of the ocean dripping
wet what they were doing. They said, “Out for a midnight walk,” and he let them go. We
were ready. Um ultimately they’re caught because 2 of their own rat them out. Now
we’re at war. They had sabotage plans to blow up the TVA, all types of things. They
were assigned a military defense council by a fellow named Colonel Royall. And Colonel
Royall viewed what President Roosevelt was doing as unconstitutional. And he had
received basically the same order that Mr. Baranson wrote, he went down to the White
House, this is a different time and place, sat outside, wanted to see the president. And out
came a letter that said, you know the president's not gonna see you, you should do what
you think is right. So he went over to the chief justice of the Supreme Court and filed the
Quirin case. And to me, this case would become about who we were and what our values
were, and if we lost them in the course of this war, what were we fighting for in the first
place?
DAN RATHER
Did you want chime in on that Mr. Baranson?
BRADFORD BARANSON
Yeah, uh actually Lieutenant Commander Swift and I both read the case. It was one of
the 2 or 3 uh most important authorities that we relied on in the White House in putting
all this together to begin with. And he's exactly correct that President Bush's order was
modeled on the order used by Franklin Delano Roosevelt in 1942. Um, many parts of it
word for word. And the reason is that that order was appealed all the way up to the
Supreme Court in 1942 and the jurisdiction of the military commissions was unanimously
upheld by the Supreme Court, so as a lawyer when you have a form of order that's
already been through judicial review, gotten all the way to the top of the system, and been
unanimously approved you think you’re on fairly solid ground. In the Quirin case it had
proved to be a very swift and effective method of trying foreign saboteurs. Within 6
weeks of capture the trial had been completed and the majority of the defendants who had
received the death penalty had been executed; it was over. And so there was an
expectation inside the White House at the beginning that military commissions would
prove to be more efficient and more rapid and more capable of dealing with changing
realities in the global battlefield than the traditional criminal justice system. Well the joke
turned out to be on us in that regard.
LIEUTENANT COMMANDER CHARLES SWIFT
I read Quirin and said that's the best possible case for Mr. Hamdan. We want to sight it
not because it hadn't been decided 8-0 but it's basis; and it had been based in both
international law and in the military justice system and I knew that both had changed
substantially since World War II. There was the 1949 Geneva Conventions and then the
1950 Uniform Code of Military Justice. And that's where we were going to ground our
defense.
DAN RATHER
Uh, what was the thinking, what was the mood, what was the attitude inside the White
House right after 9/11, that led us to detain so many people indefinitely?
BRADFORD BARANSON
Well a catastrophic event like 9/11, uh, changes the entire mood and feel inside the White
House. It makes very plain to everyone working for the president on his staff the
enormity of his personal responsibility for the security of the American people. When
9/11 happened the nation’s eyes didn't turn to the congress, they didn't turn to the
Supreme Court or the lower courts, they turned to the president. One individual human
being: George W. Bush. And they wanted to know what he had to say, what he thought
and what he was gonna do to prevent something like that from happening again. So
there's a tremendous telescoping of responsibility and centralization of authority and
power inside the White House in the wake of a catastrophe and emergency situation like
that.
DAN RATHER
Put me in the room, put me inside the White House when this was happening. Was there
fear, was their determination, uh, tell me what it was like there?
BRADFORD BARANSON
There was a universal sense that the president had to be as aggressive as possible, that the
only unpardonable sin would be a failure to use authority available to the president that
might help prevent another catastrophe uh like 9/11. The staff was very much focused on
trying to determine what sources of authority the president had and how best they could
be deployed so that if we were hit again, as everyone expected us at that time to be, no
one could be said that he hadn't done his utmost to prevent it.
DAN RATHER
Did you see President Bush himself; did you see Vice President Cheney during this
period?
BRADFORD BARANSON
Yes, although access to the president and the vice president was narrowed greatly. The
other thing that happened very, very quickly was there was a paradigm shift in the way
our government thought about the problem of Al Qaeda and militant Islamic terrorism.
Put simply, it was a shift away from the preexisting criminal justice model, to be fought
primarily by the FBI and the justice department, and toured a war model, that is Osama
Bin Laden had expressly declared war on our nation many years earlier, but finally 9/11
made us take him at his word and take it seriously.
DAN RATHER
Got it. Now the whole concept of habeas corpus on which our courts rely, guarantees a
suspect the right to appear in court and question his detainment. Do or do not military
commissions violate these rights Mr. Baranson?
BRADFORD BARANSON
Well I think you must be referring to the Military Commissions Act of 2006 which is a
piece of legislation that congress passed in the wake of the Hamdan decision to statutorily
authorize military commissions. What the Supreme Court essentially said in the Hamdan
decision is that it wasn't beyond the power of our government to use military
commissions to try suspected foreign terrorists but that congress had to be invited into the
conversation and it had to legislate. In so doing, it channeled judicial review of both
combatant status review tribunals, these are the tribunals that decide whether someone is
or is not an enemy combatant, and appeals from military commission verdicts to a single
court in the United States: the D.C. Circuit, the United States Court of Appeals for the
D.C. Circuit, often thought to be the second most important court in the land, and then
following that the Supreme Court. And as the law stands today the D.C. Circuit has
determined that the Military Commissions Act did not suspend habeas corpus, that
foreign enemy fighters who are captured and held outside the United States don't have
constitutional habeas corpus rights. What the Military Commissions Act has done in
giving them access to our courts, to review whether these verdicts from military
commissions comport with the constitution and laws of the United States, is an adequate
substitute, for habeas corpus. So that's where the law stands today, but the Supreme Court
will probably eventually have the final word on it and there's no telling what the Supreme
Court will ultimately do.
DAN RATHER
Well as we sit here this evening, what about it Lieutenant Commander? Does it in effect
suspend the right of habeas corpus?
LIEUTENANT COMMANDER CHARLES SWIFT
I… it, it could be read to do that. I think it could also be read not to. I would hope that the
court continues to put the value it does on habeas corpus in the military context. Because
inside military justice we don't have the full (indiscernible) of rights the rest of citizenry
does. It's necessary as part of the military system that we not be fully protected yet the
Supreme Court had always given us and inside military justice some right of habeas
corpus to make sure that the court that was put together comported with the law and that
is that the person that was before it should be there, that it was trying a very limited range
of crimes that were related to the military, and that it had been put in accordance with the
law. And that's what they've done in Quirin. And it's what they did in Hamdan, so the
danger in accepting an argument that suspends it in place of something after the fact is if
we have 80 trials in Guantanamo Bay, and then the Supreme Court again decides that this
is not put together correctly, they're all a do over. And at this point in time it just doesn't
make any sense to me to do it that way.
DAN RATHER
Well interesting to say the least, we're going to take a short break here, and only a short
break. And when we come back, we'll be joined by two legal experts and leading opinion
makers to talk about war and the separation of powers; so stay here with us.
DAN RATHER (cont’d)
Welcome back to New York’s great Cardozo Law School for “The Constitution in
Question,” a debate and discussion of legal and civil liberties issues in the war on
terrorism. Now detainee policies are only one part of a larger debate about presidential
power in wartime. Joining us now to help us continue and expand this conversation are
Dahlia Lithwick, a senior editor and legal correspondent for Slate.com, and Jeffrey
Rosen, a professor of law at George Washington University and legal affairs editor for
The New Republic. Thanks for joining us here. Mr. Rosen, let me ask you first, let's
pause and back up for what we call in television, “the wide shot,” should we be giving
this time to this discussion tonight, and what's the most important thing for people to
have in mind as we go through it?
PROFESSOR JEFFREY ROSEN
Ultimately it’s not a partisan discussion. It has to do with America's most precious
founding document, the constitution, and how that constrains the power of the
government, which is America's greatest contribution to western democracy. I found
citizens on both sides of the political spectrum are engaged by these issues and like to
talk about it constitutionally. The fact that you were discussing so eloquently whether or
not the constitution was violated by the military commissions, whether the president has
the power to act unilaterally, these are things that Supreme Court justices disagree about
and citizens disagree about, the hardest questions in our democracy. There are no easy
answers to them so I just can't imagine a better conversation to have and I’m delighted to
be part of it.
DAN RATHER
Well, Ms. Lithwick, what about you? I mean, we all talk perhaps too easily and too glibly
about the Constitution and constitution guarantees, what about the theory, and with many
people it's a belief that yes, we believe in the Constitution, we treasure the Constitution
and the Bill of Rights, but when we are at war, particularly when we're at war with the
kind of opponent, the kind of enemies, that we've never really faced on a large scale
before, that we have to adjust, and we have to make allowances? What about that
argument?
DAHLIA LITHWICK
I think it's a good argument and I think certainly it animated the early days and months of
this conversation. I think that we quickly got to a point in this country where we were sort
of faced with a false choice though and the false choice went a little something like this:
if you suspend your own civil liberties, if you agree to give away your rights then by
definition you will be safer, and I think a lot of people, that's the reason that we all
somehow thought the patriot act was okay without scrutiny, you'll remember almost
nobody read it before congress passed it and it seems to me that was just the cornerstone
fallacy in the national conversation. And I think instead of having a sort of measured
reasonable “do the ends justify the means” conversation where we say, “all right if I’m
going to give up my right to have, you know, a warrant issued before the government can
wire tap me, well then I want to know what it is that I’m getting in exchange.” And it
seems that we did not have that conversation, certainly, I think years later now we're
living through the fall out.
DAN RATHER
Mr. Baranson, I suspect that you might have a little different view of that.
BRADFORD BARANSON
Well I think it's true that there is not a correlative security gain for each and every
suspension or curtailment of rights that you can identify but it's also true that those who
say there is no trade off whatsoever between civil liberties and security are really
whistling in the dark and they're not really being honest either. The critical thing to
recognize about a lot of the post 9/11 innovations, that is, we are bringing back, like
military commissions, we are bringing back tools that the national government has had at
it's disposal in times of grave peril and war in the past and historically. So that's one thing
and I think the other thing, you have to bear in mind that the much greater part of what
we are doing that is more aggressive, that is controversial is directed not at our own
citizens but rather those whom we suspect of being affiliated with our enemy, with
militant Islam; the kinds of people who came and attacked us on 9/11. Now because of
the nature of the conflict, because of the nature of the enemy, it's harder to have the same
degree of assurance that you’re targeting the right people. The risk of error is higher here
and that creates some of the difficulties and some of the conundrums that we face.
DAN RATHER
We were talking before about the Hamdan case - the driver for Osama Bin Laden. Now
let me ask you Mr. Rosen, on the day after the Hamdan decision, Ms. Lithwick wrote and
I quote “I think we have to wait until next year to see if the legal landscape is
fundamentally altered by Hamdan." Well, it's a year later - has it been fundamentally
changed?
PROFESSOR JEFFREY ROSEN
It has and it hasn't. It hasn't in the sense that shortly after Hamdan - not a year later,
congress proceeded to give the administration most of what it had sought and to suspend
habeas corpus in precisely the way the Supreme Court said that the president couldn't do
unilaterally. But what did fundamentally change, and I think Dahlia was right to say we'd
know more in a year and we do know more now in a year, is that the Supreme Court not
for the first time, for in fact the second or third time, but the most prominent time had
rejected a claim that will all respect to my friend Brad Baranson was unprecedented and
this was the Bush administration’s claim that he could act unilaterally, that article 2 of the
constitution gave him the power to act without constraint by the courts and congress and
indeed that to the degree he needed congressional authorization - a resolution that
congress passed right after 9/11 which merely told him to find the perpetrators of Al
Qaeda - authorized him in his view to detain indefinitely American citizens and aliens,
the Supreme Court rejected that claim, it rejected it several times but most explicitly in
Hamdan and a year later we're seeing lower courts also rejecting the claim. So in that
sense Hamdan was a sea change of Commander Swifts' victory was important and the
Supreme Court, like congress, now that it's in the hands of the democrats, is rejecting the
president’s claim, which is proving to be supported really by very few people except for
president Bush.
DAN RATHER
Dahlia, what about the argument that says, “listen we're in the 21st century, a new kind of
enemy, a new kind of war, and yes the president gets to make these important calls, not
congress, not the courts, but the president?”
DAHLIA LITHWICK
Well I think there are two things wrong with it, if you give me a minute I could probably
think of four more but you know the two that I’ll give you initially are the most
important. One is that certainly the constitution gives the president some powers in war,
gives him commander and chief powers but it also allocates powers to the other branches.
There is the system of checks and balances contemplated so it's simply not the case that
the president has unfettered, unchecked powers, but I think the second and much more
problematic issue is that this is not a war if anyone every contemplated a war. This is a
war that the president himself has said is going to go on through our lifetimes. This is a
war that has no end; this is a war against an inchoate entity that we call Al Qaeda. It's not
a war against a nation state as we had contemplated in thinking about war and the laws of
war. So it seems to me that what we're talking about is taking ourselves out of one system
that I think we all understand, and saying now we're at a war at worst with an idea –
terrorism. So in effect we're in a war forever and then the question becomes do we really
want to say that for the duration of our lifetimes the president will have the powers as Jeff
points out so eloquently to say congressional imperatives don't matter, and what the
courts tell me don't matter and I think that's a terrifying prospect.
DAN RATHER
Well, based on your experience and the White House experience is that was it, is it still,
basically the conclusion of president Bush that he has the right to do these things, not
only a right but a responsibility?
BRADFORD BARANSON
Well there is no doubt whatsoever in my mind that the president and his advisers believe
wholeheartedly and in complete good faith that he does, in fact, have the legal authority
under article 2 of the constitution to do the things he has been doing and that have been
regarded as controversial over the last few years. These questions of where the president's
commander and chief powers end and the powers of congress to regulate them begin are
among the most difficult unresolved questions in constitutional law. The debate is a
healthy one. The only thing I object to is the insinuation or the suggestion that the
positions the Bush administration have taken have been motivated by anything other than
a sincere good faith belief in both the necessity and the legality of these actions. I know a
lot of the individuals who have participated in making these decisions and these are
people who care deeply about the country, who do care deeply about civil liberties, who
think about those things, but who honestly believe that the scope of the president's
powers under article 2 is broader than some of the critics think. The fact is that the
president’s power has always been at it's strongest and at it's least checked when it is
directed against an external threat and an external enemy. That's inherent in the
constitutional design - one of the reasons that the constitution was drafted and enacted
was to strengthen the nation’s ability to speak and act with one voice abroad and to
protect us, and as the preamble of the constitution itself says, to provide for the common
defense.
DAN RATHER
I want to move on to some recent rulings; Lieutenant Commander let me call on you first
- what of the most recent rulings do you think are the most important and why?
LIEUTENANT COMMANDER CHARLES SWIFT
Well there's really a series that happened just recently. The MCA went back to court
down in Guantanamo.
DAN RATHER
The MCA?
LIEUTENANT COMMANDER CHARLES SWIFT
The Military Commissions Act. My client was taken back along with the fift-, uh, now
he's 20 years old he was 15 at the time, Canadian called Carter. Both military judges in
those cases dismissed the charges, uh, basically on the same logic that Judge Robertson
had used in our case, Hamdan, the original ruling in that, and the logic here has been that
the president had maintained that, “I can opt out of the Geneva Conventions, I can decide
that you are an unlawful combatant and not entitled to any protection. I’ve made a
determination, it's a broad determination and in fact, no one in Afghanistan is entitled to
protection except for our people,” and again the judges at the military commission said
the president is not a tribunal. There must be individualized determination and that
determination has to be in accordance with the existing law of war. If you want a new law
of war, your going to have to go write it, so again we find ourselves in this idea of a new
kind of war but no new rules except those the president claims he can make. And that is a
real difficulty for me - that's inside it as a military officer I was trained to follow the
existing rules and I actually believe we're stronger when we're following the rules. But
the question continues to be what will the rules for this conflict, which is I agree in some
ways, it's a war against a tactic not even any known individual, how we're going to apply
the rules of war in this new asymmetrical environment?
DAN RATHER
Well you say no individual, forgive me, but I will say that for me, and I think for some
Americans that it is against at least one individual - Osama Bin Laden was responsible
for almost 3000 deaths just a short walk from here so it is against an individual in that
sense.
LIEUTENANT COMMANDER CHARLES SWIFT
What I’m saying is individual determination of the person who is captured. The president
says anyone captured in Afghanistan is an unlawful combatant, no matter how they
fought, no matter what they did they’re an unlawful combatant and it's been
predetermined. And the definitions of what was a combatant were so expanded that the
United States government would take the position in a district court. A little old lady in
Switzerland, who sent money to Al Qaeda, through an Islamic charity, who is not
actually sure that they would give it to Al Qaeda, would nevertheless be a combatant.
Under that definition we had expanded ourselves to the point of what Joe Stalin had said,
“Everybody is a solider, you can kill anybody you want.”
DAN RATHER
Mr. Rosen, let me turn to you for a moment - I’ve heard a number of people say, in
effect, we wouldn't be here tonight discussing many of these subjects if someone high in
authority had said, “Listen, people captured in Afghanistan are going to be tried there,
they're going to be tried on the battlefield, at least they're going to be tried there. They're
not going to be brought back to North America in Guantanamo.” Do you think that would
have been the case? Try them right there?
PROFESSOR JEFFREY ROSEN
You know it really is one of the tragedies of the administration’s response to 9/11, that is
was an effort to avoid judicial review; avoid having the courts weigh in on these
questions that led it to make strategic decisions that ultimately backfired and left it in a
worse off position than if it had acted with congressional support to begin with. So the
reason that people were sent to Guantanamo and weren't, for example, tried on the battle
field, was because of fear that American courts might assert jurisdiction and would
review the matter, and time and again the effort to avoid judicial review failed, the
Supreme Court said, no, Guantanamo detainees do have rights, then when an American
citizen Jose Padilla is detained indefinitely - he's moved around; first he's in New York
then he's sent to Virginia because it's thought that Virginia judges will be more
sympathetic, then one of the most conservative judges in Virginia, so appalled by the
government's effort to avoid review that he attempts to reassert control over the case, and
in an effort to avoid that, the administration says all right, we'll try him as a criminal after
all. What a disappointment for citizens who believe, as you had suggested, so strongly
that we should be safer in these matters. I think the interesting counter factual is what if
the day after 9/11, President Bush had gone to congress and said, “Congress, please
create military commissions in Afghanistan perhaps, make sure they abide by the laws of
war [as Commander Swift suggested,] let's not cut corners, let's just do it with
congressional support.” Does anyone doubt for a moment that he would have gotten
everything that he wanted and more, and does anyone doubt that we now would have had
convicted enemy combatants who would be serving time? It was really, and I agree with
Brad Baranson, these are people who are doing this in good faith. They believe
legitimately for constitutional reasons that the president, through his authority as
commander and chief, has to exercise complete control of the justice department, of the
state department and of all matters dealing with the law of war so there is nothing badly
intentioned about it. But it proved to be a catastrophic constitutional and strategic error
that ended up leaving the administration weak and feeble. Now a hostile democratic
congress is likely to reverse many of the support that it's predecessor congress had given
and in the end it will go down in history as a discredited idea that ill-served the
administration that evoked it.
DAN RATHER
We need to move to a break, Mr. Baranson - I know you have to sit there and not respond
to that, (laughs) if you have a response in mind, but, uh, passionately and eloquently you
said that with the best of intentions it wound up being a catastrophic mistake…?
BRADFORD BARANSON
The White House did go to congress for legislation immediately after 9/11; it went for
The Patriot Act, which was a large and very complex piece of legislation. It took
enormous resources, the operative principal was, we will go to congress where we feel
we need to where our reading of the law suggests to us that the president can do
something on his own, then the president will do that on his own because it is much faster
and much more efficient and there was a premium placed on acting as quickly as possible
to try to strengthen and protect the country. The Military Commissions Act provides our
enemies in arms the most extravagant suite of legal rights that any country's enemies
have ever enjoyed in any armed conflict throughout history. I defy anyone to give me an
example that disproves that proposition. And yet the critics still say it's inadequate, still
say it's unconstitutional, still are challenging it up and down the block and the reason is
essentially there are a lot of people who are criticizing the administration who will not be
satisfied until we have outfitted our enemies in military conflict with the full compliment
of rights that U.S. citizens enjoy when they're accused of a crime.
LIEUTENANT COMMANDER CHARLES SWIFT
I would say, quickly, we had a system. There was a system right in place - a war court
that in the interim, when all this happened, has held more than 300 court marshals in
Afghanistan and in Iraq holding lots of service members accountable for what they did.
The system existed completely. Did it have evidentiary rules that considered the
battlefield? Absolutely it did. You know what it didn’t do; it wouldn't let in a coerced
confession. That's right, if you put water on somebody's face and held them down until
they said, “I did it,” that wasn't going to get in under any circumstances. I'm a criminal
defense lawyer, I’ve never asked for anything from my client other than a full and fair
trial. I don't believe there are super trials or criminals are over protected in this country;
the rights exist for a fair trial, that's it. We had a system that worked, proven, tested, and
most importantly, accepted in the world as fair because how these are viewed in the
world is going to go a long way to whether we win this thing or not in my lifetime and in
your lifetime.
DAN RATHER
Dahlia, we haven't gone back to you in while and I’m going to take this break. We will be
back with more of our discussion after this short break.
DAN RATHER (cont’d)
We welcome you back to Cardozo Law School in New York City where, before a live
audience, we're debating and discussing constitutional issues and presidential power. I
want to go to the issue of NASA warrant less wiretapping. I said NASA, the NSA, quite a
different thing - the National Security Administration, (laughter) of warrant less
wiretapping. As I go into this, and Dahlia I’m going to ask you to frame the debate for us;
but before we do so, I want to say that one of our panelists, Brad Baranson, is counsel for
one of the parties involved and therefore cannot speak about it in this forum, so we
excuse you from this, so now Dahlia back to it - frame the debate.
DAHLIA LITHWICK
The truth is it’s a very hard debate to frame because we don't know what this program is
that we're talking about. I mean, we sort of know the contours of it but there is a lot that
we don't know. There is you know a threatened mass resignation over the legality of this
program. And then most recently we heard in January from Attorney General Alberto
Gonzales that now it's actually come under the supervision of the FISA court, which is
the super secret court that signs off on warrantless surveillance. We know all of this
because of leaks, the New York Times reported this, so it's an amazingly interesting
scandal and we want to sort of see those initial legal memos that came out of the office of
legal counsel, the justice department, what did that authorize? What was it in those
memos that so affronted people like John Ashcroft and James Comey that they said, “No,
we wont authorize this program; it's not legal,” and they were overruled by Alberto
Gonzales and, I mean, such an incredibly dramatic story, but we don't know what the
story is.
DAN RATHER
Well let me back up for a second and review. I think many, if not most, people know this,
but wiretapping has always been a flashpoint if you will, we're talking here about
warrantless wiretapping, correct me if I’m wrong, but before recent times it was generally
agreed you can't wiretap without a warrant, correct? In cases involving national security
and things where secrets were to be kept, there was this special court set up - you don't
want to go to just any judge and ask for your warrant to wiretap; so this court was set up
to keep secrets that's the way the system did work right?
DAHLIA LITHWICK
That was a 1978 statute called FISA that created this secret court. It has been called a
“rubber stamp court.” This was a decision to bypass that system; instead we're going to
create some kind of national surveillance program, details as yet unknown, that kind of
side-steps that entire legal architecture and I think one of the reasons it's so very
important is that this is not a case where the president was acting in the absence of a
statute, we had a statute on the books, and the president was not only acting, I think, to
get around the statute, but in doing so secretly and that raises a whole host, I think, of
problems.
DAN RATHER
Well Jeff, who made that decision? You said a decision was made to change it, granted
there is a lot we don't know about this, which makes it all the more mysterious and
interesting, but who made that decision?
PROFESSOR JEFFREY ROSEN
What we do know is what Dahlia suggested, from the riveting congressional testimony of
James Comey that Andrew Card, certainly, and he thinks President Bush himself decided
that he wanted authorization for this program. And thereforeDAN RATHER
Excuse me, Andrew Card being Chief of White House Staff.
PROFESSOR JEFFREY ROSEN
- Chief of Staff to the president - and it was Comey's belief that President Bush had called
Mrs. Ashcroft in Ashcroft’s hospital room where he was recovering from an illness, and
said that he had to recede Card and Alberto Gonzales so that he could authorize this
program, and in a moment that could have come out of a movie, Ashcroft, although
feeble, said, “No, I’m going to stand by my deputy. I’m not the Attorney General; he is.”
He pointed to the acting Attorney General Comey, and that man will not authorize the
program. So this is, as Dahlia says, an example of the administration's own lawyer saying
you have to obey the law and the president again, because there is a theme in all of our
discussions and it's a principle theme as Brad said, belief in the theory of the unitary
executive which says that if the president believes that a law, the FISA law, conflicts with
his constitutional powers of commander and chief he has the power either to interpret it
in a way that it doesn't conflict or even to ignore it because the law itself might be
unconstitutional. That's a dramatic claim and the Supreme Court has not settled this one
way or another but it was that, that emboldened the president to take this position and his
own justice department said that he couldn't do it.
DAN RATHER
Lieutenant Commander?
LIEUTENANT COMMANDER CHARLES SWIFT
Inside this, I think, what you really see underneath all this argument was that argument
about the war. Where's the war? You see, that's the real question; certainly wire-tapping
is not illegal under the law of war. So this became part of that concept Mr. Baranson
talked about and I realize he can't talk here so it's not fair but this real debate about are we
in a total war model or are we in something of a criminal model or you know where are
we? And the argument was at least being put forward by some that we're at war 100% of
the time, 100% of the places and the president could act as commander and chief
everywhere and anywhere and that's extraordinary power. Extraordinary.
DAN RATHER
Well again, what about the argument, okay, it's extraordinary power, but these are
extraordinary, perhaps even unique times and the enemy is within us, they're out there
somewhere, they're I’m going to put this in quotation marks, "they're among us,” and
they're just waiting to strike and therefore you have to have extraordinary methods
including being able to wiretap, if not at will, something close to at will.
LIEUTENANT COMMANDER CHARLES SWIFT
But you know, they've always been, before the Civil War, after the Civil War. Whether
it's the Klu Klux Klan, whether it was communists, whether it was antiwar sympathizers
at anytime, there is no period of time that you couldn't have made that same argument;
the enemy is within us. The strength of our nation goes is that we have always been able
to put those fears aside. One of the things that drove me in the Hamdan decision was that
I believed that every time we make a decision out of fear, fear that the enemy is right
around the corner and we're going to lose it all, or whether it was separate or equal,
whether it was to put Japanese into concentration camps. You know 50 years later we
look back on those decisions; we're not particularly proud. Nobody sits around and goes
boy that was a good day for America. And you know to my way of thinking if we had the
strength to say okay, we'll fight the war where the war is at and at home we're going to
preserve the democracy and the republic and we're going to play by the rules in all places
we were going to be stronger and ultimately triumph. (applause)
DAN RATHER
Jeff, you wanted to say something here…
PROFESSOR JEFFREY ROSEN
Well said, absolutely. So I just was moved to support the Commander's very powerful
point with some more recent history, the government said, trust us. We need these
extraordinary powers, we will use them well and we have a very dramatic recent example
that comes not from the courts, but from the administration itself that on the occasions
that when the administration has been given these extraordinary powers it has abused
them and turned them not on terrorists but on innocent citizens. I'm talking of a related
surveillance scandal and that has to do with the national security letters, in some ways the
broadest power that The Patriot Act granted the administration, it's like warrantless
surveillance but it allows the administration to say, “I think that this large group of people
might be suspicious, I’m going to seize their telephone records or their email and data
mine them in secret without telling them prohibiting even their lawyers from disclosing
to the clients that they're being seized and I can use it for any purpose.” And the inspector
general of the justice department concluded that 10s of 1000s of these warrants have been
issued over the past three years that almost all of them had been issued for things that had
nothing to do with terrorism, that the FBI wasn't following its own regulations or keeping
track of the warrants that it issued and therefore couldn't match the request it made with
the data that it received that it had broken the procedures and law that had been granted
and that all of the data had been used not for terrorism convictions but for other
investigations that had nothing to do with terrorism. It's a powerful rebute to the trust-thegovernment model. It's like that Woody Allen movie, remember when he flies up on a
flying bicycle to Mia Farrow's window and he says, “Trust me, hop on.” And she says, “I
can't, we're going to get killed.” “Trust me, it's me, Andrew.” And he says, “Trust me
anyway,” and that’s really, (laughter) this is the trust-me-anyway administration and on
the occasions when it's been granted these extraordinary powers it has abused them.
DAHLIA LITHWICK
I want to play Brad Baranson for a minute because I feel like he is being knee capped a
little and I PROFESSOR JEFFREY ROSEN
You may not need a friend like her.
DAHLIA LITHWICK
- No, no, I want to make one point that I think may have been lost a little. You know one
of the, going back to the trials and the folks that we've tried on the warrant here, there is
one incredibly important objection that I’ve had all along which I think goes to
Lieutenant Commander Swift's point at the beginning about Hamdan, we're trying the
driver, the chauffer, you know whose worst crime may have been making a left on a red
(laughter) you know we're trying these thugs. One of the things that I think is very, very
important to sort of peel away here is, you know, it's very hard to separate out what is a
real threat and what isn't a real threat and in fairness I think it's really worth saying that if
we could have gone back and tried those 17 or 15 guys who were completely under the
radar on 9/10 of 2001, we wouldn't have had cases against them either. I mean they were
guys who were on illegal visas who you know, what, cheated at poker. They were not
known criminals and so we do have a problem and just in fairness and, you would have
said it better, but I’m going to say it I do think it is a different kind of war, it is a different
kind of enemy and we do have to do some things differently.
DAN RATHER
Well I want to point out again in case someone missed it, Mr. Baranson no doubt would
have a lot to say about this but he represents one of the parties in a lawsuit that is
associated with this so here he has to sit silent. Let me follow up for just a moment on
that and Lieutenant Commander if you want to chime in on this as well, that even though
Mr. Hamdan was quote "just the driver for Osama Bin Laden," let's accept that, it's a well
known technique though, a widely accepted one, and a legal one at least up to a point you got someone like that and you want to instill fear in him so you can, forgive my
reporter's French, if you must squeeze him, that he may not have committed any crimes
but he may know a lot and so if you can put the fear of a long term prison or even a short
term prison term you might find out some very valuable information.
BRADFORD BARANSON
Well on Hamdan I can jump in and let me just add one thing that sort of echoes and
strengthens the point you’re making. Hamdan, although he’s quote-unquote "just a
driver," he was also a bodyguard. He received weapons training and military training at
Al Qaeda camps and he was essentially Osama Bin Laden's body man. Now, someone
doesn't get a job like that unless they're extremely trusted by the inner circle of the
world's leading terrorist organization so I don't want any of us to walk out of here
thinking this is just a hapless fella who answered an ad in the classifieds (laughter) and
became a driver for someone who he really didn't know his line of business.
LIEUTENANT COMMANDER CHARLES SWIFT
Fair enough. To respond to your position, one of the problems with Guantanamo and the
military commissions to begin with was, do you know what Salim gets for not guilty?
Anybody got an idea? What is his prize? To go back to his cell. And he can sit there,
because there is no belief or argument on any one party that he would be released if
acquitted. So your hammer is kind of hard because he's already in jail forever and
because Geneva is arguably not applied, he'll save his life in the same jail cell it really
you know becomes a lot of window dressing. I think that the real part in how again to
quote-unquote "squeeze someone" was always available to the administration for lowlevel people. They didn't have to violate the law so the criminal justice system actually
provides lots of stuff to squeeze people. Ironically the law of war does not. In the idea of
criminal law, absolutely. Use the process, squeeze the people.
DAN RATHER
I could go on for a long time here but we're running close to the end of time and we'll
give each of you, we'll start with you Dahlia, to try to as objectively as possible, each of
you is accustomed to being an advocate in one way or another, but as objectively as
possible for someone who is saying, “You know I want my kids protected. I love my
country, (very emotional) but I’m really worried about civil rights.” Give them something
to hang their hat on as we go away here that they can be thinking about, wanting to be
active and engaged citizens, on the subject as objectively as you can.
DAHLIA LITHWICK
My comfort to them is that for 100s of years this country has been as good as it's
exquisite constitution. And as good as this exquisite finely honed system of checks and
balances and as good as the fundamental rights and freedoms that we believe in and that
9/11 was harrowing, and it did cause a paradigm shift but, I think that to give away those
things and to give them away sort of cavalierly without thought, those freedoms, those
checks, those balances, those protections is to sell the farm and so I think what I hang my
hat on, what I tell my 2 year old and my 4 year old when I think about this and, you
know, the kind of world I want them to have is that we are only as strong as this exquisite
system so let's fight for it and let's not give it away.
DAN RATHER
Jeff?
PROFESSOR JEFFREY ROSEN
When people ask me whether they should be optimistic or pessimistic about the ability to
balance liberty and security I have to say I am an optimist despite all that has gone on
since 9/11 our system works. Isn't that what President Ford said after Watergate? I think
we've seen again and again that it is possible to protect liberty and security at the same
time and that all we need is the will and the will exists. We've been talking about many of
the failures in the liberty and security debates but I can think of successes. To give just
one example - think of the surveillance system that was proposed right after 9/11 - The
Total Information Awareness System that was supposed to gather the data and electronic
telephone records and magazine subscriptions of all Americans within it's grasp into a
grand centralized database and allow for vast information sharing that could have allowed
people to be prosecuted the way Nixon went after the Vietnam protestors and looked at
their tax returns. Well that system was not implemented, not just because of the courts,
although the courts have been an important part of this debate, but because of political
activism, it was engaged privacy advocates both civil libertarian liberals and libertarian
conservatives who objected to this system and because of their objections, the system was
refined in important ways. That's a brilliant solution to many of the things that we were
talking about that avoids the civil liberties dangers while also making us safer and that
was the result of engaged citizens protecting politics. The reason the system works is
because of checks and balances. It's important to have congress objecting and standing up
for it's prerogatives and the courts and the president pushing back and do I think in 50
years will the constitution be as robust as it is now? I think it will just because of the
genius of the founders who created these structural incentives for each branch to clash
and as a result we can protect liberty and security at the same time.
DAN RATHER
Counselor Baranson?
BRADFORD BARANSON
I think there is a lot of comfort to be had for people who are concerned that we have gone
too far in curtailing civil liberties and who are concerned about perceived executive
abuses. Chief Justice William Rehnquist wrote a book called All The Laws But One,
which is about civil liberties in wartime. And in each case, WWII, the Civil War, the
revolution, following each of those wars, not only was the status quo ante restored but
actually civil liberties were expanded beyond where they had been prior to the conflict.
That was the chief justice's essential thesis as he surveyed the entire historical record. So
I think there's plenty of reason to be optimistic about the future along all of these criteria.
DAN RATHER
You share that optimism Commander?
LIEUTENANT COMMANDER CHARLES SWIFT
Absolutely. You know I stood on the Supreme Court steps a year ago basically and
looked out to those who have criticized us. I think this is the remarkable thing about this
country: a naval officer disagreed with the president. He filed a lawsuit on behalf of the
enemy. In most countries a naval officer disobeying an order and filing or opposing it, it's
called a coup. (laughter) In the United States it’s called Hamdan vs. Rumsfeld. And it's
what makes us different, it’s what makes us better and I ultimately believe in the structure
guarantees we’ll be free, including free to disagree which is a good thing, not a bad thing.
DAN RATHER
Well I want to thank you all for being here tonight. I also want to thank our audience for
being here with us. The issues we've heard debated and discussed here this evening could
not be more contemporary, but they had their roots in a history that goes back to
America's founding and before. The framers of the constitution established our system of
checks and balances, in large part, to protect against the threat of unlimited executive
power but they did not spell out, nor foresee every contingency, they couldn't. The
constitution is in many ways a bare bones document that evolves with each generation of
Americans and the challenges we face. As our courts and elected officials wrestle with
how to protect our nation against today's threats, we watch what they do so, closely
because they are also establishing the legal tools and precedents that the next president,
and those who come after, will have at his or her disposal. What America does now will
resonate well into the future. And as you think about this, you may also want to consider
that these fundamental questions of law are not only about what we do, but also, as
indeed one of our panelists mentioned tonight, about who we are as a people, as a
country. For HDNet, Dan Rather reporting. Good night. (applause)