For six years and a month you’ve heard variations of it – “The Constitution is not a suicide pact.” You see, constitutional restrictions on governmental power really must give way to critical practical needs. Everything changed on September 11, 2001, of course.
Some say Abraham Lincoln first used this “suicide pact” quip as a devastating response to charges that he was violating the Constitution by suspending habeas corpus during the Civil War. Those words shut everyone up. But he didn’t say those words, exactly – the precise phrase “suicide pact” was first used by Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago – a 1949 free speech case decided by the Supreme Court. William O. Douglas led the majority, overturning the disorderly conduct conviction of a priest whose anti-Semitic, pro-Nazi rants at a rally had incited a bit of a riot. The Court held that Chicago’s “breach of the peace” ordinance violated the First Amendment, but Jackson wrote a twenty-four page dissent in response to the majority decision of only four pages. Jackson was upset –
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
That was not the end of it – a grumpy dissent to a majority decision nearly sixty years ago. In 2006, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, and professor at the University of Chicago Law School, offered us all his book, Not a Suicide Pact: The Constitution in a Time of National Emergency. Friends who have argued cases before him say Posner is brilliant, and perhaps he is. In the book he argues that as now we’re facing terrorism and the threat of weapons of mass destruction the scope of constitutional rights must be “adjusted” – we need to be both pragmatic and rational. Some rights may not be inalienable after all – you just need to do a cost-benefit analysis to balance the harm intrusive new security measures inflict on personal liberty against the increased security those measures provide us all. Posner pretty much comes down on the side of increased government power – the idea is that terrorist activity is sui generis, neither “war” nor “crime,” so we need to be creative and tailor our response appropriately – so we give terror suspects fewer constitutional rights than persons suspected of ordinary criminal activity and so on.
Well, are you going to argue with Judge Posner? Barbara Ehrenreich already had, here – warning against taking the “not a suicide pact” idea too far. This is a discussion of what led to the Declaration of Independence, the events and personalities, and what was put in it and why. It’s a bit of history and textual analysis, ending with this –
But it is the final sentence of the declaration that deserves the closest study: ”And for the support of this Declaration … we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Today, those who believe that the war on terror requires the sacrifice of our liberties like to argue that ”the Constitution is not a suicide pact.” In a sense, however, the Declaration of Independence was precisely that.
By signing Jefferson’s text, the signers of the declaration were putting their lives on the line. England was then the world’s greatest military power, against which a bunch of provincial farmers had little chance of prevailing. Benjamin Franklin wasn’t kidding around with his quip about hanging together or hanging separately. If the rebel American militias were beaten on the battlefield, their ringleaders could expect to be hanged as traitors.
They signed anyway, thereby stating to the world that there is something worth more than life, and that is liberty. Thanks to their courage, we do not have to risk death to preserve the liberties they bequeathed us. All we have to do is vote.
The column was from July 4, 2004. And people voted, and when the reelected president angrily said yes, he had specifically ordered warrantless wiretaps and searches of American citizens and had, yes, intentionally broken the law, and would continue to do so, Posner provided a bit of the cover the president needed. The White House had the Yoo and Gonzales secret memos saying it was fine, and Posner was okay with it all. It was the same deal for what everyone knows is torture, and for those secret overseas prisons, the “black sites,” and all the rest. You’ve got to do what you’ve got to do. The Washington Post and New York Times could do all the investigative reporting they liked – they could have their scoops and Pulitzers. It didn’t matter. Justice Jackson was right. The choice is not between order and liberty. It is between liberty with order and anarchy without either, or something like that. Inalienable rights were an “ideal” – we live in the suddenly quite awful real world, and it’s not 1776 any longer. So you got things like the attorney general testifying that there is no express “right” to habeas corpus anywhere in the Constitution, even if the Constitution says that right shall not be abridged unless we’re invaded. Huh?
Everyone shrugged. We’d rather be safe.
So one is not surprised to find, on Tuesday, October 9, 2007, Linda Greenhouse in the New York Times noting another decision, one that will be allowed to stand. Supreme Court Refuses to Hear Torture Appeal –
The Supreme Court today turned down the chance to elaborate for the first time in more than 50 years on the “state secrets privilege” by refusing to hear an appeal filed on behalf of Khaled el-Masri, who claims he was abducted and tortured by United States agents while imprisoned in Afghanistan.
Without comment, the justices let stand an appeals court ruling that the state secrets privilege, a judicially created doctrine that the Bush administration has invoked to win dismissal of lawsuits that touch on issues of national security, protected the government’s actions from court review.
Masri is the German citizen of Lebanese descent who says he was grabbed while on vacation in Macedonia in late 2003, whisked off in one of those CIA charter planes to Afghanistan and held there for five months in a secret prison, then taken to Albania and set free. It was an “oops.” He was mistaken for a terrorism suspect with a similar name. And he alleges that he was tortured while in the Afghan prison. But it’s not just his word here. After investigating the case, German prosecutors earlier this year issued arrest warrants for thirteen CIA agents and the German Parliament is continuing to investigate this particular incident. Our program of “extraordinary rendition” seems to be unpopular in Germany.
Masri, represented by the American Civil Liberties Union of course, brought a lawsuit in federal court against George Tenet, the former CIA Director – and three private airline companies and twenty individuals identified only as “John Doe.” He was seeking damages for treatment that he said violated both the Constitution and international law. But after he filed in December 2005, the government intervened – this should be dismissed under the “state secrets privilege.” You know how that goes – to provide evidence in the case would compromise national security. That worked in the Federal District Court in Alexandria – case dismissed and this fellow’s lawyers could not take discovery. The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the dismissal earlier this year. And that was all she wrote.
The Supreme Court appeal was based on these lower rulings – the thought was that these lower court rulings allowed the state secrets doctrine to become “unmoored.” It wasn’t being used to shield specific evidence in a lawsuit against the government – it was being used to dismiss an entire case before any evidence of any kind was produced. That’s not fair! The Supreme Court wasn’t interested.
There is of course, the history of the “state secrets privilege” –
The Supreme Court first announced the doctrine in a decision in 1953, United States v. Reynolds, which began as a lawsuit by survivors of three civilians who died in the crash of a military aircraft. In pre-trial discovery, the plaintiffs sought the official accident report. But the government, asserting that the report contained information about the plane’s secret mission and the equipment that it was testing, refused to reveal it. The Supreme Court upheld the government, ruling that evidence should not be disclosed when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”
But of course when decades later the truth came out – the plane in question was a mess, poorly maintained and dangerous, no matter what its mission (which was routine anyway) – it was too late. Ha, ha – fooled you all, and saved a big payout to the widows and families. But the doctrine remained, no matter how shabby the instance that created it.
You can argue that this 1953 decision, which the court has invoked now and then but has not ruled on since 1953, does not justify dismissing a case before any evidence of any kind was even requested. You could, but you’d get nowhere. As the poor fellow’s lawyer said, the courts have permitted the doctrine “to evolve from an evidentiary privilege to a broad grant of immunity.” The executive branch has shielded itself from “judicial scrutiny.”
So be it – the ACLU will bring up the whole doctrine again. They’ve filed an appeal that raises the issue as part of a challenge to the National Security Agency’s wiretapping program. They’ll probably get just as far.
The Washington Post account adds this detail –
The American Civil Liberties Union had taken up Masri’s case. Lawyers for the group said the Bush administration was using the state secrets privilege too broadly, invoking it to stop lawsuits relating to wiretapping and whistle-blowers as well as terrorism cases.
In this case, they argued in asking the court to take the case, “the entire world already knows” the information the government said it is seeking to protect.
But government lawyers said comments from officials are different from the specific details the administration would need to expose in order to litigate the case. Solicitor General Paul D. Clement called it an “extravagant request” that would overturn the precedent set by the court more than 50 years ago in denying a lawsuit brought during the Cold War about a downed war plane.
Kevin Drum argues that this is unfortunate –
Far from being “extravagant,” this was an ideal opportunity to take a fresh look at a badly-constructed precedent that cries out for reexamination. The Bush administration has invoked the state secret privilege at triple the rate of any previous administration, and they don’t use it solely to get specific pieces of evidence tossed out. They use it, as they’re doing with the el-Masri case, to keep cases from coming to trial at all, and they’re almost certainly doing it as much to prevent the release of merely embarrassing information as they are to prevent the release of genuine secrets.
And he suggests reviewing these comments from Henry Lanman a year ago –
Despite the burgeoning use of this privilege and the way it’s been used to gut entire cases, the most disturbing aspect of the Bush administration’s expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration’s broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get underway, the administration avoids having to give a legal account of its behavior. And if this tactic persists - if the administration continues to broadly assert this privilege and courts continue to accept it - the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the “war on terror” violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it’s a secret.
If this tactic persists? It will. See Abuse of Presidential Power and the Ghost of Nixon over at Mother Jones –
Anyone else see the legal Catch-22 here? The El-Masri decision is less about national security than it is about the President’s right to invoke the privilege of state secrets. Without judicial process, we’ll never know if that claim is legitimate or lawful. Before dismissing El-Masri’s case, the Court might have looked to another old opinion, also cited in the March ruling of the Appeals Court:
“Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”
That was United States v. Nixon - the famous Watergate decision in which the court ruled unanimously to limit Presidential power.
Sigh. Nixon again. The same issues come up again and again.
It would be depressing but for the work of Seton Hall Law Professor Mark Denbeaux, as Jeralyn Merritt, the big-time defense attorney, explains at TalkLeft.com here –
A federal judge in Washington, D.C. Gladys Kessler, has granted a preliminary injunction to a Guantanamo detainee. It is believed to be the first time a federal court has said “no” to the Pentagon. The case is RAFIQ BIN BASHIR BIN JALLUL ALHAMI et al., vs. GEORGE W. BUSH, et al.
The opinion, unsealed today, is here.
In a nutshell, the Pentagon wanted to send Gitmo detainee Mohammed Rahman, a Tunisian, back to Tunisia to serve a 20 year sentence for a crime for which he was charged and tried in absentia since his arrival at Guantanamo. He objected, arguing among other grounds, he would be tortured in a Tunisian prison. He filed a habeas action seeking an order preventing his transfer.
And she quotes from the opinion –
Petitioner Rahman (”Rahman”) is a Tunisian citizen allegedly captured by Pakistani bounty hunters and transferred to the custody of the United States on an undisclosed date. He has been detained in Guantanamo Bay since shortly after his capture. Rahman maintains that Combatant Status Review Tribunal (”CSRT”) proceedings have never resulted in any finding that he is an “unlawful” enemy combatant. On May 15, 2007, the Government provided notice to Petitioners and the Court of its intention to transfer Rahman out of Guantanamo Bay and release him to the Government of Tunisia. A 20-year prison sentence awaits Rahman in Tunisia.
The fellow was tried in absentia under the Tunisian Patriot Act in 2003 (there is such a thing), convicted and sentenced to twenty years, and he has severe health problems. His argument to not be sent packing to Tunis was based on evidence that he would face a serious threat of torture if rendered to a Tunisian prison – he cited two reports of international organizations that document torture of prisoners and police brutality in Tunisia. So think about it – the guy’s serious health problems, his Tunisian ex poste facto conviction in absentia, and his allegations, with evidence from others, of the indiscriminate use of torture in Tunisian prisons – all this demonstrates “the devastating and irreparable harm he is likely to face if transferred.” Or so Mark Denbeaux argued for him. And no one ever found him an “unlawful” enemy combatant so this whole thing is odd – we held him for five years and decided there wasn’t much point.
And wonder of wonders, the court agreed there was something odd in our saying “oops” and sending him off to Tunisia –
In view of the grave harm Rahman has alleged he will face if transferred, it would be a profound miscarriage of justice if this Court denied the Motion based on the Court of Appeals’ decision … and the Supreme Court later reversed or modified that decision. At that point, the damage would have been done.
… The Government suffers absolutely no harm from entry of the Preliminary Injunction, whereas the failure to grant Rahman the interim relief he seeks - relief necessary to ensure his survival until the Supreme Court rules - would be irremediable if reversed.
GEORGE W. BUSH, et al. – ticked off now. But sometimes a habeas action works.
Of course this second case is a minor matter. The first one matters more. You see, constitutional restrictions on governmental power really must give way to critical practical needs. Believe that and you know where it leads.
