A War Like No Other (26 page)

To take one remarkable example, the Ninth Circuit dismissed a lawsuit against a private transport contractor allegedly used by the CIA in an extraordinary rendition even though it conceded that the plaintiff could prove the prima facie elements of his claim and the defendant could make a valid defense without the evidence the government wanted to withhold.
³⁸
Disregarding its responsibility to hold the government accountable for violating fundamental rights, the court justified its dismissal of the suit on the grounds that “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.”
³⁹
The duty of the court is to manage the lawsuit to prevent such a risk from ever materializing, not to turn that risk into a shield that would protect the defendant from liability.

Of course, situations may arise where the evidence is essential to the plaintiff’s claim or the defendant’s defense and the claim of secrecy is justified. This may be so, for example, when the evidence sought would disclose the identity of an undercover agent of the CIA. In those cases, the government should be presented with two options that are analogous to the ones provided in a criminal case: either disclose the evidence or, if the plaintiff can establish a prima facie case, allow the entry of a default judgment against it. In providing the government with these options, the judge, as in a criminal case, will respect the government’s insistence on secrecy but at the same time will require it to bear the consequences of its action and thus prevent the state secrets doctrine from becoming a de facto grant of immunity. Holding the CIA and other government agencies accountable to the Constitution is as urgent a public undertaking as providing the accused in a criminal trial with access to all the evidence in the possession of the government that might be of benefit to him or her.

The state secrets doctrine, as was true of the doctrines limiting the liability of government officials for damages
(Bivens
special factors or qualified immunity), might well be seen as technical encrustments by a judiciary reluctant to second-guess the executive on foreign and military matters. The decisions of the circuit courts may have been couched in terms of these formal doctrines, but the governing impulse may well have been derived from the constitutional tradition that calls for judicial deference to the executive in cases that involve foreign and military matters. Such a view may explain, but certainly does not justify, the decisions of the lower federal courts summoned to examine renditions to torture.

Admittedly, the executive possesses a special competence in defining the foreign policy objectives of the nation and how those objectives might be pursued. The executive also has special competence in determining how a war should be fought—what military action is required for a victory. Yet the executive has no special competence when it comes to determining whether the challenged action, even if it is of a military nature or implicates foreign policy, comports with the fundamental values of the nation.
⁴⁰
Indeed, such a normative determination is the essence of the judicial function—to determine whether extraordinary rendition, even if fully required by foreign policy or military objectives, is consistent with the dictates of the Fifth and Eighth Amendments. On that issue, the executive is likely to have a view, but it is owed no deference. The authority of the judiciary over such normative questions arises not from the personal virtues of those who happen to sit on the bench but from its political insularity and the strictures of public reason that govern all exercises of the judicial power—the need to listen to all those aggrieved, to try questions of the law and facts in open court, and to justify its decision on the basis of principle.

Obama’s Policies

On January 20, 2009, the Bush presidency drew to a close. On assuming office, President Obama immediately issued executive orders addressing some of the abuses of the previous administration. He confined the CIA, at least until further study, to interrogation techniques set forth in the Army Field Manual; closed the secret prisons, the so-called black sites, maintained by the CIA; and required the closing of Guantánamo in a year’s time.
⁴¹
These actions were applauded—quite properly so—because they had the inevitable effect of minimizing the risk of torture. “Black sites” and “Guantánamo” entered the legal lexicon as prisons in which foreign nationals were abused and maybe even tortured. Moreover, having the CIA governed by the Army Field Manual will, at least nominally, place off-limits the “enhanced interrogation techniques” the agency had used during the Bush era.

Apart from these initial measures, the signals sent by the new administration on the issue of torture were decidedly more mixed. To his credit, President Obama maintained, as he did throughout his campaign, that he was opposed to torture.
⁴²
In his first address to a joint session of Congress, he spoke inspirationally of the example of America, and once again declared his opposition to torture.
⁴³
His nominee for attorney general, Eric Holder, in a clear attempt to distance himself from Bush’s last attorney general, Michael Mukasey, declared in his confirmation hearing, without the least hesitation, that waterboarding is torture.
⁴⁴

On the other hand, President Obama did not issue an order barring extraordinary rendition. At his confirmation hearing to become the director of the CIA, Leon Panetta equivocated on whether extraordinary rendition would be used by his agency
in the future. He said he was unprepared to send someone to another country “for the purpose of torture or actions by another country that violate our human values,” but he also said that he might be prepared to return the person seized “to another country where they prosecute them under their laws.”
⁴⁵
He failed to guarantee that the person subject to the rendition would have judicial procedures available to make certain that he would not be tortured, and this failure may have made the distinction he drew illusory in practice.

Even deeper misgivings relate to the unwillingness of Obama to take appropriate corrective action for the constitutional wrongs, such as rendition to torture, that occurred during the Bush years. He had a clear opportunity to alter the government’s position in the Arar case and chose not to do so. Similarly, in arguments before the Ninth Circuit in the suit against a CIA contractor implicated in extraordinary rendition, Obama’s lawyers relied on the state secrets doctrine and thus seemed prepared to confer de facto immunity on the CIA for constitutional wrongs as gross as those entailed in extraordinary rendition.
⁴⁶

At his first press conference, President Obama was asked to comment on Senator Patrick Leahy’s proposal for the establishment of a truth commission. He then said that he was more concerned with the future than with the past.
⁴⁷
Fully in accord with this sentiment, Leon Panetta announced at his confirmation hearing that CIA agents who had engaged in torture, including waterboarding of suspected terrorists, would not be criminally prosecuted.
⁴⁸
Acting under public pressure, in August 2009 Attorney General Eric Holder formally opened an investigation to determine whether a rogue CIA agent who had tortured prisoners should be criminally prosecuted. This agent was not accused of waterboarding but of threatening imminent death by revving a drill near the head of a hooded and shackled prisoner. In the end, the attorney general decided not to prosecute this agent.

The willingness of Obama to speak only to the future was ill-conceived. He also had a duty to seek an accounting for the wrongs of the past. He should have prosecuted those who engaged in practices clearly understood to be torture and, on top of that, allowed those who were in fact tortured to pursue civil remedies. In these civil cases, the government was, of course, entitled to defend itself on the merits of and contest the factual allegations and assertions of law that should have been contested, but it should not have hid behind the technical doctrines—such as the state secrets doctrine, the special factors exception to
Bivens,
or the privilege of qualified immunity—that enabled the judiciary to avoid reaching the merits.

The initiation of criminal proceedings and allowing the judiciary to reach the merits of a civil suit such as Arar’s would have provided a measure of justice to the victims of torture, and not so incidentally would have lent credence to President Obama’s lofty rhetoric about the future. It would have brought to light the way the Constitution had been abused and would have enabled the public to confront and acknowledge the violations of the Constitution committed in its name. The public would have been given an opportunity to say “Never Again.”
⁴⁹
These criminal and civil proceedings would also have allowed the judiciary to affirm the dignity principle and the constitutional norms to which it gives life, and to declare—in bold and clear terms—that these norms apply to American officials and their instrumentalities wherever they act and against whomever they act.

Prologue to Chapter 8

Trevor Sutton

Nearly all of the major legal controversies that arose out of the Bush and Obama administrations’ national security policies revolved around constitutional provisions that govern core functions of the criminal justice system, such as searches and seizures, executive detention, methods of interrogation, and procedural fairness in determinations affecting personal liberty. But the collateral effects of the War on Terror on our constitutional tradition have not been confined to these provisions. As the following essay demonstrates, the government’s efforts to eradicate extremism worldwide have had a corrosive effect on a constitutional right that might at first seem remote from counterterrorism policy: freedom of speech.

Unlike the other essays in this volume, this chapter, “Criminalizing Political Advocacy,” which was originally delivered as the Arlin M. and Neysa Adams Lecture in Constitutional Law at Temple University, focuses on one recent Supreme Court decision,
Holder v. Humanitarian Law Project,
and deals exclusively with First Amendment jurisprudence. But this narrow scope
should not mislead the reader into thinking that the essay is thematically unlike the rest of the book. To the contrary, “Criminalizing Political Advocacy” offers a compelling case study of a theme that appears frequently in these pages: that war tends to corrode constitutional rights, and that long wars pose especially grave threats to those rights because their duration can turn aberrations into a new normal. The essay also offers a crisp illustration of how responsibility for such “debasement” (to use Fiss’s word) of the Constitution falls on all three branches, not simply on the executive.

On some level, it is far from surprising that the right to free speech should come under pressure during wartime. Divided nations rarely win wars, and speech that might seem benign during times of peace can take on the appearance of an existential threat at the onset of armed conflict. American history provides many examples of this tendency. In 1798, before the Bill of Rights was even a decade old, the Federalist Congress passed the Alien and Sedition Acts, which criminalized speech critical of the government as the nation prepared for war with France. This pattern repeated itself numerous times in the two centuries that followed, particularly during and in the immediate wake of the First World War, when the Supreme Court twice upheld enforcement of the Espionage Act of 1917 to prohibit leafleting. However, since the First World War, the Supreme Court has erected substantial barriers protecting free speech, even in the wartime context. As a consequence, free speech protections during the Vietnam War were especially robust, as the example of the Pentagon Papers case,
New York Times v. United States,
illustrates.

To date, the statute upheld in
Holder v. Humanitarian Law Project
is the only constraint on general advocacy of violence to survive a challenge since the 1969 decision in
Brandenburg v. Ohio,
which limited restrictions on speech in the name of public
safety to situations where such speech was likely to incite or produce “imminent lawless action.” The statute in
Humanitarian Law Project
made it a crime to “knowingly provid[e] material support or resources” to designated foreign terrorist organizations—a phrase that was construed to cover speech and that the plaintiffs argued violated the First Amendment because it criminalized political advocacy. Chief Justice Roberts, writing for a 6–3 Court, rejected this argument on a theory that the statute contemplated two kinds of speech, one “coordinated” with a terrorist organization and one “independent” of it. Roberts proceeded to find the statute’s ban on “coordinated” speech constitutionally sound, even if the speech in question endorsed only the lawful, nonviolent aims of a designated organization.

This holding generated considerable controversy across the political spectrum. The
Washington Post,
which often takes a hawkish line on national security issues, wrote that the Court had “go[ne] too far in the name of fighting terrorism.” Eugene Volokh, a law professor with libertarian leanings, called the opinion “somewhat troubling.” But perhaps the most piquant observation came from David Cole, a law professor and a lawyer for the plaintiffs in the case, who observed in an op-ed piece for the
New York Times
that three former Bush officials, including Attorney General Michael Mukasey, Secretary of Homeland Security Tom Ridge, as well as Rudolph Giuliani, the former mayor of New York, all appeared to have committed a federal crime when they spoke at a conference organized by supporters of an Iranian opposition group that the State Department had designated a terrorist organization. “The risk that speech advocating peace and human rights would further terrorism is so remote,” Cole wrote, “that it cannot outweigh the indispensable value of protecting dissent.”