Baseball Crank
Covering the Front and Back Pages of the Newspaper
November 24, 2008
LAW/WAR: Searching For Terror

Attorney General Mukasey's fainting spell at his Federalist Society speech (and his heckling by a member of Washington's state Supreme Court) have obscured an excellent speech on the Bush Administration's approach to terrorism and the rule of law. It's worth pondering in light of recent judicial developments, including from the Second Circuit (the federal appeals court sitting in Manhattan with jurisdiction over New York, Connecticut and Vermont) this morning.

Judge Mukasey, as you'll recall, may not be the favorite of many conservatives on social issues, but arrived as Attorney General with pretty much a universally respected reputation in the New York City legal community for his many years as a trial judge and Chief Judge of the nation's busiest federal court. His speech took to task the vagueness and hyperbole of so many Administration critics, and the danger of criminalizing decisions made to protect the citizenry from terrorists in reliance on the legal advice of the Justice Department and the White House Counsel's office. A few samples:

As the end of this Administration draws near, you would expect to hear broad praise for this success at keeping our Nation safe. Instead, I am afraid what we hear is a chorus with a rather more dissonant refrain. Instead of appreciation, or even a fair appraisal, of the Administration's accomplishments, we have heard relentless criticism of the very policies that have helped keep us safe. We have seen this in the media, we have seen this in the Congress, and we have heard it from the legal academy as well.

In some measure, those criticisms rest on a very dangerous form of amnesia that views the success of our counterterrorism efforts as something that undermines the justification for continuing them. In an odd way, we have become victims of our own success. In the eyes of these critics, if Al Qaeda has not struck our homeland for seven years, then perhaps it never posed much of a threat after all and we didn’t need these counterterrorism policies.


Now it is hardly surprising that the questions of how we confront the terrorism threat should generate vigorous debate. These questions are among the most complex and consequential that a democratic government can face. There is, understandably, passionate debate about where the legal lines are drawn in this new and very difficult conflict and, as a matter of policy, how close to those legal lines we should go.

As the members of this Society know, however, answering legal questions often involves a close reading and a critical analysis of a text - the Constitution, statutes, judicial decisions, and the like. Regrettably, this point is much too often lost in the public discourse on the subject. Newspapers, commentators, and even prominent lawyers often discuss critical questions about national security policies with barely any acknowledgement that the answers may depend on the language of, say, the Constitution or a statute. And critics of this Administration’s policies rarely draw distinctions between whether a course of action is permitted as a matter of law, and whether that course of action is prudent as a matter of policy.


[I]n June of this year, 56 Members of Congress sent me a letter requesting that I appoint a special counsel to conduct a criminal investigation of the actions of the President, members of his cabinet, and other national security lawyers and intelligence professionals into the CIA's interrogation of captured members of Al Qaeda.

The Members who signed this letter offered no evidence that these government officials acted based on any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack. Nor did they provide any evidence or indication that these government officials sought to authorize any policy that violated our laws. Quite the contrary: as has become well-known, before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required.

Casual requests for criminal investigations, as well as the even more prolific conflation of legal disagreements with policy disagreements, reflect a broader trend whose institutional effects may outlast the current Administration and could well endanger our future national security.


After going seven years without another terrorist attack, our intelligence professionals and national security lawyers now hear quite a different message. When 56 Members of Congress request a criminal investigation of the professionals and lawyers, they should have no doubt that those lawyers, and certainly their successors, will get the message: if they support an aggressive counterterrorism policy based on their good faith belief that such a policy is lawful, they may one day be prosecuted for it.

The competing imperatives to protect the nation and to safeguard our civil liberties are worthy of public debate and discussion, and congressional oversight and review of our intelligence activities is vitally important. But it is equally important that such scrutiny be conducted responsibly, with appreciation of its institutional implications. We want lawyers to give their best advice to those who must act, and we want those who must act to know that they can rely on that advice.

As this Society knows, the rule of law is not undermined by stating with clarity and precision exactly what the law requires. To the contrary, both our law, and our democracy, gain strength when we separate legal disputes from policy disputes, and when we permit our policy disputes to be aired in good faith.

Read the whole thing.

Moving from the general to the specific, Orin Kerr looks at one of today's trio of Second Circuit opinions affirming convictions in September 11-related prosecutions (opinions here, here and here), noting the application of a different Fourth Amendment rule in cases with evidence developed overseas by anti-terror investigators:

In an opinion by Judge Cabranes, the court held that the warrant requirement does not apply to searches abroad conducted by U.S. officials: searches abroad are governed by a reasonableness standard instead of the warrant requirement.
Here the U.S. was acting alone, with intelligence agencies investigating in Kenya without the assistance of Kenyan authorities. Until today, there were no federal appellate decisions on this set of facts, and the only lower court decision (that I know of) was the district court decision below. The Second Circuit applied a different sort of reasonableness rule: It applied a totality of the circumstances test that generally balances the individual's privacy interest with the government's interest in collecting the information. Notably, in this case the test factored in the government's national security interests in investigating terrorism -- an interest that the court indicated was paramount and that the court was "loathe" to discount.

I suspect the court may in part be reading the election returns and realizing that the Obama Administration is likely going to be using the courts more against terrorists. There is, of course, a potential unintended consequence to courts working harder to uphold domestic prosecutions of terrorism: if terrorists are prosecuted by the same rules as ordinary criminals, and we need to bend the rules to make sure we can prosecute terrorists, they will stay bent for everyone. Coming up with a totality-of-the-circumstances test is something of a tried and true method for fact-driven jurisprudence that is designed to avoid explicitly using a different set of rules, although of course there remain compelling arguments that the reasonableness requirement should always be the standard under the Fourth Amendment (and, indeed, there is a legal-realist case that the many current exceptions to the warrant requirement proves that, de facto, it already is).

Gabriel Malor notes that restrictions imposed by the current rules of evidence, and the fear of exposing classified intelligence-gathering methods, are a big reason why terror detainees can't be convicted in judicial proceedings even when intelligence sources have good reason to detain them, quoting this from a recent decision by Judge Leon in the DC District:

To support it's [sic] claim that petitioners had a plan to travel to Afghanistan to engage U.S. and allied forces, the Government relies exclusively on the information contained in a classified document from an unnamed source. This source is the only evidence in the record directly supporting each detainee's alleged knowledge of, or commitment to, this supposed plan. And while the Government has provided some information about the source's credibility and reliability, it has not provided the Court with enough information to adequately evaluate the credibility and reliability of this source's information. See Parhat v. Gates, 532 F.3d 834, 847 (D.C. Cir 2008) ("[T]he factfinder must evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty."). For example, the Court has no knowledge as to the circumstances under which the source obtained the information as to each petitioner's alleged knowledge and intentions.

In addition, the Court was not provided with adequate corroborating evidence that these petitioners knew of and were committed to such a plan. Contra Parhat, 532 F.3d at 849 (noting, in the Detainee Treatment Act context, that when assessing hearsay evidence in intelligence documents, "we do not suggest that hearsay evidence is never reliable -- only that it must be presented in a form, or with sufficient additional information, that permits [the factfinder] to assess its reliability"). Because I cannot, on the record before me, adequately assess the credibility and reliability of the sole source information relied upon, for five of the petitioners, to prove an alleged plan by them to travel to Afghanistan to engage U.S. and coalition forces, the Government has failed to carry its burden with respect to these petitioners. Unfortunately, due to the classified nature of the Government's evidence, I cannot be more specific about the deficiencies of the Government's case at this time.

Suffice it to say, however, that while the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation under the Supreme Court's decision in Hamdi to protect petitioners from the risk of erroneous detention.

From the outset of the War on Terror, while the Bush Administration has tried to find ways forward within existing legal frameworks, what we have needed most of all is to provide new a distinct rules for detention, interrogation and surveillance of terrorists that recognize that they are neither common criminals nor members of state militaries. (As David Rivkin and Lee Casey note, piracy presents a similar set of problems despite its ancient pedigree). It's unfortunate that, aside from the passage of a modernized FISA and Congress' passage of new rules for military commissions (which have since been wholly gutted by the Supreme Court), we have not had a new legal framework. The courts are going to have to be stuck with these problems for the foreseeable future.

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