Much of the rhetoric defending the administration’s new measures seems aimed at justifying lower standards for all suspected terrorists as being fair. We are told that fairness to criminal suspects requires only that we strike an appropriate trade-off or balance between two values—freedom and security—each of which, unfortunately, can sometimes be served only at the cost of the other. Because terrorism is a horrific threat to security, we are, it is said, justified in striking the balance differently for that crime; and it is therefore not unfair to subject suspected terrorists to a higher risk of unjust conviction.
The scope of the new policies seems to assume that conclusion. They presuppose that the undoubted dangers of international terrorism permit a degraded standard of protection for anyone who might be thought connected to terrorism—a standard that allows mass preventive detention, general invasions of the right to counsel, indifference toward privacy, and contempt for the Geneva Conventions. Even the administration’s few critics seem to accept the idea that fairness is a matter of balancing risk and rights. Senator Russ Feingold of Wisconsin, the single senator who voted against the USA Patriot Act, conceded the need for a new balance between security and freedom in the face of the terrorist danger. He claimed only that that act got the new balance wrong.
In fact, however, the familiar metaphors of “trade-off” and “balance” are deeply misleading, because they suggest a false description of the decision that the nation must make. They suggest that “we”—Americans in general—must decide what mixture of security and personal freedom we want for ourselves, in much the same way as we decide how elaborate a network of intercity roads we want once we know how much such roads cost and what their impact on the countryside might be. If that really were our choice, it would be an easy one to make. None of the administration’s decisions and proposals will affect more than a tiny number of American citizens: almost none of us will be indefinitely detained for minor violations or offenses, or have our houses searched without our knowledge, or find ourselves brought before military tribunals on grave charges carrying the death penalty. Most of us pay almost nothing in personal freedom when such measures are used against those the President suspects of terrorism.
The issues we actually face are very different, however, and the balancing metaphor obscures those issues. We must decide not where our interest lies on balance, but what justice requires, even at the expense of our interests, out of fairness to other people—those resident and foreign aliens who might very well be ensnared in the less protective and more dangerous legal system the administration is constructing for them. We cannot answer that question by simply comparing the costs and benefits to any person or group.
Nor can we answer it, as the balancing metaphor also suggests we can, by composing a sliding scale that shows how individual rights we grant accused criminals are diminished in proportion to the danger the crime they are accused of poses to our security. It is true that the rights we have traditionally recognized impair our security to some degree. We might well be a safer society if we allowed our police to lock up people they thought likely to commit crimes in the future, or to presume guilt rather than innocence, or to monitor conversations between an accused and his lawyer. But our criminal justice system has not evolved through calculations of precisely how much risk we are willing to run in order to give any particular class of accused criminals a certain degree of protection against unjust conviction: we do not give accused murderers, for example, less protection than accused embezzlers or jaywalkers.
The traditional rights of an accused have developed piecemeal over time, and can only be explained historically, at least in detail. They have roots in the English common law and were shaped and developed, step by step, in discrete expansions, modifications, and contractions, largely in decisions of the Supreme Court interpreting the abstract language of the Constitution, such as the requirement of “due process” of law. Some of the most important of the rights now enforced were recognized only within the last fifty years. Much of what we take to be indispensable—jury trials and the complete separation of judicial from prosecutorial functions, for example—are not features of the criminal system of other democracies whose fairness is not in doubt; they have other features our system lacks, however—conspicuously, a ban on death as a punishment—so that the fairness of two systems can only be compared as a whole, and inexactly.
Nevertheless, the rights that we have evolved in that way are those that we now, as a nation, deem the minimum that we owe to anyone who is accused of a serious crime and pursued and tried within our system of criminal justice. Fairness requires, as a matter of equal concern for anyone who might be innocent, that we extend those rights to everyone brought into that system.18 Whenever we deny to one class of suspects rights that we treat as essential for others, we act unfairly, particularly when that class is politically vulnerable, as of course aliens are, or is identifiable racially or by religious or ethnic distinction. It makes no sense to say that people accused of more serious crimes are entitled to less protection for that reason. If they are innocent, the injustice of convicting and punishing them is at least as great as the injustice in convicting some other innocent person for a less serious crime. So we must reject the balancing argument—it is confused and false. If we believe that in our present circumstances we must subject some people to special risks of grave injustice, then we must have the candor to admit that what we do to them is unjust.
Do we really face such extreme danger from terrorism that we must act unjustly? That is a difficult question. We cannot yet accurately gauge the actual power of the linked groups of terrorist organizations and cells that apparently aim to kill as many Americans as possible. Indeed we scarcely know the identities and locations of many of these groups. The September attack was made more feasible by our own failures and we could do much to correct those failures without sacrificing traditional rights. The FBI and other agencies failed to notice or investigate important warning signals, and there were unpardonable defects in airport security that we have apparently still not repaired, for the shameful reason that employing competent airport security personnel is expensive. It is unclear, moreover, how far the administration’s various new measures, including military trials, would actually help to prevent future attacks.
But al-Qaeda killed, by latest reckoning, approximately 3,000 people in minutes on September 11, which is a quarter of the number of murders in the entire country in 1999. If they or some other terrorist organization has or gains access to nuclear, chemical, or biological weapons and the means to use them, then the threat to us would be truly enormous. It would justify unusual and, in themselves, unfair measures if the government thought that these would substantially reduce the risk of catastrophe. Even then, however, it would be imperative to permit only the smallest curtailment of traditional rights that could reasonably be thought necessary, and to attempt to mitigate the unfairness of these measures so far as safety allows. In several respects, the administration’s new criminal justice policies fail that test.
First, as I have emphasized, the new policies define those who may be treated unfairly very broadly, instead of insisting on a more discriminating test of the actual danger a suspect poses. Ali al-Maqtari, for example, a Muslim visitor, was arrested on September 15, and jailed under harsh conditions for eight weeks. Apparently he was arrested because his wife wore an Arab headdress, because he and his wife spoke a foreign language to each other—French—and because they had box-cutters with them, which he used in his job in a market and she in the shipping room of a nursery.19
Second, the new measures provide that in each case the determination that some special danger requires bypassing traditional rights, and running a higher risk of injustice, is to be made by the executive branch alone—by the President, or by the attorney general or some other official who is subject to the President’s direction. True, detainees can challenge certain of these rulings in court, through the limited form of habeas corpus proceeding that the Patriot Act allows, for example. But detainees may be unaware of their rights, or have difficulty finding effective counsel,20 and it would seem obviously fairer to require a further independent judicial check on those decisions: to require, for example, that no suspect be detained for extended periods without trial unless the government has convinced a judge—in a private hearing in chambers, if necessary—that security would be jeopardized by releasing him, and that no conversations between a prisoner and his lawyer be monitored unless not only the attorney general but an independent judge has been satisfied that allowing such conversations to be private would jeopardize the lives of others.21
Assigning judges such roles would presumably not itself threaten national security—federal judges are as responsible and loyal as any other officials—and it would make it more likely that the special powers were exercised only when genuinely necessary. It may be that judges will be excessively deferential to the government in such proceedings. But that is no reason for not giving them the power to intervene when they be-lieve that the government’s position is indefensible.
Finally, the government apparently intends to seek the death penalty in its prosecution of some of those it accuses of terrorism. But if it chooses to try them under conditions that run an increased risk of convicting the innocent—before special military tribunals in which they would have fewer rights than in ordinary criminal courts, for example—then it seems irresponsible to ask for death as a punishment, because that penalty is unnecessary for safety and magnifies the horror of an unjust conviction. We may need to incarcerate suspected terrorists to avoid great danger, but we do not need to kill them.
Our government has already gone too far, then, in displacing the constitutional and legal rights that we have evolved as our own national standard of fair play in the criminal process. Of course we are frightened of the power of suicidal terrorists to kill again, perhaps on an even more massive scale. But what our enemies mainly hope to achieve through their terror is the destruction of the values they hate and we cherish. We must protect those values as well as we can, even as we fight the terrorists. That is difficult: it requires discrimination, imagination, and candor. But it is what patriotism now demands.
—January 31, 2002
For a general account of the structure of fairness in the criminal process, see Chapter 3, "Principle, Policy, Procedure," in my book A Matter of Principle (Harvard University Press, 1985).↩
See testimony of Ali al-Maqtari be-fore the Senate Judiciary Committee, judiciary.senate.gov/te120401f-almaqtari.htm.
See "Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism," a statement submitted by the American Civil Liberties Union to the Senate Judiciary Committee on November 28, 2001, available at www.aclu.org/congress/1112801a.html.↩
The Due Process Clause might well be thought to require individualized hearings testing extended detention orders at least in the case of aliens who are lawful permanent residents of the United States, and perhaps also certain other aliens. See the Ninth Circuit's recent decision in Kim v. Ziglar, Ninth Circuit Court of Appeals, decided January 9, 2002.↩
For a general account of the structure of fairness in the criminal process, see Chapter 3, “Principle, Policy, Procedure,” in my book A Matter of Principle (Harvard University Press, 1985).↩
See testimony of Ali al-Maqtari be-fore the Senate Judiciary Committee, judiciary.senate.gov/te120401f-almaqtari.htm.
See “Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism,” a statement submitted by the American Civil Liberties Union to the Senate Judiciary Committee on November 28, 2001, available at www.aclu.org/congress/1112801a.html.↩
The Due Process Clause might well be thought to require individualized hearings testing extended detention orders at least in the case of aliens who are lawful permanent residents of the United States, and perhaps also certain other aliens. See the Ninth Circuit’s recent decision in Kim v. Ziglar, Ninth Circuit Court of Appeals, decided January 9, 2002.↩