Article Appeared in The Florida Bar News
Written by Jan Pudlow
December 2001
Eavesdropping on conversations between inmates and their lawyers.
Sneak-and-peak warrants that allow secret searches, wiping out the chance to call a lawyer or watch while the police rummage.
Secret databases of suspicious people with no clear guidelines of what names and information are included.
Rounding up and detaining indefinitely more than 1,200 people, some on material witness warrants, some on immigration violations such as overstaying a visa, some detained even when an immigration judge has ordered them freed.
Roving wire taps that allow law-enforcement to keep listening to conversations beyond the designated target.
Special military tribunals to try noncitizens suspected of terrorism in secret tribunals without juries where the standard for proving guilt falls below “ beyond a reasonable doubt,” where the death sentence requires only a two-thirds vote, and there are no appeals.
In the name of fighting terrorism and preserving national security, is America willing to give away its civil liberties?
“We love security more than we love liberty,” David Cole, a law professor at Georgetown University who often represents foreigners detained by the government, told The New York Times.
“It is generally the case that in times of fear, people place security above all, and they are quite willing to cede to the government extraordinary authority.”
But new powers created by the government in the wake of September 11 attacks are sparking renewed vigilance among lawyers to safeguard the basic principles of the Constitution.
“With a lot of these bills, the government is saying, ‘Trust us.’ But trial lawyers and civil libertarians have trouble with that concept,” said Larry Spalding, state lobbyist for the American Civil Liberties Union.
And it’s not just the predictable ACLU lawyers who are concerned that changing the rules in a national crisis could lead to a slippery slope of losing precious constitutional rights.
Terry Russell, president of The Florida Bar, has spent a lot of time talking about the danger of eroding constitutional principles in the name of fighting terrorism.
“What I try to do is give a historical perspective. This has happened many times before, and you have to rely on the voices of reason on how you got to where we are, and the great constitutional freedoms that we have, and how hard they were to achieve, and how easy they are to give up and lose,” Russell said.
“There is no cause or justification for compromising our constitutional principles. Bottom line, in my view: Absolutely nothing happened on September 11 that the American justice system and the Constitution of the United States cannot handle.”
Thomas P. Scarritt, Jr. chair of the Bar’s Trial Lawyers Section, has written a column for newspaper opinion pages expressing his concern that eavesdropping on lawyer-client conversations is unconstitutional.
When the Trial Lawyers Section meets in Miami in January, Scarritt said, he wants to discuss what other actions the members may take as watchdogs of the Constitution.
“Many (including this writer), believe we are living through times of unique threats to our society and that we must make sacrifices to protect our national security. We have been called upon to embrace our everyday lives, while at the same time remaining ever-vigilant; to give blood, money, and volunteer efforts to assist our victims; and to trust and support our military as it engages a shadowy enemy in extremely difficult terrain,” Scarritt wrote in his column.
“For the most part, Americans have enthusiastically complied. But we should not be asked to accept rules which abridge the very freedoms on which our founding principles are based, no matter how grievous the enemy against whom they might be used. The threat to our civil liberties far outweighs the physical threat these rules are designed to contain. They should be repealed immediately.”
And Chesterfield Smith, former president of the ABA and The Florida Bar, said in a speech to the National Legal Aid and Defender Association’s annual convention recently held in Miami: “ Today, 28 years after Watergate, our country again is confronted with another governmental crisis, which if left unwatched or unmonitored may result in a similar denigration of civil liberties.”
Even conservative columnist William Safire warned: “Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.”
RULES ARE DIFFERENT IN TIMES OF WAR
In these extraordinary times of trying to wipe terrorism from the globe, President Bush and his administration have justified the executive branch creating new powers. Their sweeping initiatives alter fundamental principles of the American judicial system, including the privacy of an attorney-client relationship, the right to trial by jury, and protections against dragnet detentions.
They argue that the changed rules for ferreting out suspects and prosecuting alleged terrorists are designed to apply to people who are not American citizens during a national crisis of heightened fear of more terrorists attacks. Recent polls bolster Bush’s stance that he has strong public support for his agenda.
Among the altered judicial landscape, the boldest are the military tribunals that, with the presidents’s signature on an order November 13, create an alternative justice system that’s designed to be swift and mostly secret, for noncitizens who are suspected of involvement in terrorism. Until now, people charged with crimes in America – whether U.S. citizens or not– were afforded many of the constitutional rights and protections of citizens.
But the military tribunals wipe out trials by juries, withhold access to evidence against defendants, employ panels of military officers instead of judges, lower the standard of proving guilt from “beyond a reasonable doubt” to “have probative value to a reasonable person,” and ban any appeals.
Release of information could be as minimal as the defendants’s name and sentence and transcripts of proceedings could be sealed for years, perhaps decades, according to a military officer who spoke to The New York Times.
“I need to have that extraordinary option at my fingertips,” Bush said after signing an executive order allowing secret military tribunals for noncitizens suspected of terrorism, last used by President Franklin D. Roosevelt during World War II against Nazi saboteurs.
“I ought to be able to have that option available should we ever bring one of these al- Qaeda members in alive. It’s our national interests, it’s our national security interests that we have a military tribunal available. It is in the interests of the safety of potential jurors that we have a military tribunal,” Bush told The Washington Post.
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“Foreign terrorists who commit war crimes against the United States in my judgment, are not entitled to and do not deserve the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice,” Attorney General John Ashcroft said, “ I think it’s important to understand that we are at war now.”
But Russell counters the American system – open court where the judicial branch and an independent jury stand between the government and the accused – is not only adequate to bring wrongdoers to justice, it is tried and true.
“Are we afraid of our system?” Russell asks. “We tried Manuel Noriega, and we tried the people who bombed the World Trade Center (in 1993). We brought them to justice. Now we’re not in a declared state of war. I’m not aware of anything the government could have done differently before September 11 that these proposals would have changed. They had intelligence; they didn’t act on it. Show me what you had and why it was inadequate before you show me what you need. I get the strange feeling that when you do that, that you’re scapegoating. I’d hate like hell to see the United States Constitution be the subject of scapegoating. Don’t tell me we have constitutional infirmities in this country that made us susceptible to terrorism. I don’ t believe that. I just don’t believe that. I think more of our way of government.”
Russell added: “ I would like to know why we did not detect this and why we could not stop these 19 fanatics from boarding four airplanes and destroying the World Trade Center and the Pentagon.”
On November 15, Vice President Dick Cheney said: “The mass murder of Americans by terrorists, or the planning thereof, is not just another item on the criminal docket. This is a war against terrorism. Where military justice is called for, military justice will be dispensed.”
But some question whether justice is truly the goal.
Harvard Law Professor Philip Heymann in The New York Times said : “The tribunal idea looks to me like a way of dealing with a fear that we lack the evidence to convict these people.” And Harvard Law professor Anne Marie Slaughter, on ABC’s “Nightline,” made the point that the war is being fought to preserve American values.
“One of those values is justice. And we have an entire system designed to achieve that. To forsake that now is to betray the cause we’re also fighting for,” she said.
As for the eavesdropping on lawyer-client conversations, Attorney General Ashcroft defended his order as a tool to prevent terrorism, stressing it is aimed at only a few– those in federal custody who have been detained but not charged with any crime. of there is “reasonable suspicion” that an exchange of information may occur about further acts of terrorism.
“Let’s be clear about what it is: designed to keep people from continuing to perpetrate crimes through their lawyers’ sometimes unwitting cooperation, by using the lawyer as a conduit for information and instructions or a means of signaling to individuals outside,” Ashcroft told The New York Times.
But ABA President Robert Hirshon counters that “no privilege is more ‘ indelibly ensconced’ in the American legal system than the attorney-client privilege. The Sixth Amendment guarantees a right to counsel. The new rules clearly violate that privilege, and therefore seriously impinge on the right to counsel. If the government has probable cause to believe criminal activity is occurring or is about it occur, it can ask a judge to approve the type of monitoring proposed by these regulations. But prior judicial approval and the establishment of probable cause – the standard embodied in the Fourth Amendment – and not ‘reasonable suspicion,’ are required if the government’s surveillance is to be consistent with the Constitution and is to avoid abrogating the rights of innocent people.”
Similarly, Scarritt, chair of the Trial Lawyers Section, said: “However well-intentioned, the regulations are unconstitutional. There is nothing to preclude the government from applying the rules to attorneys’ conversations discussing trial strategy and client confidences in matters that have little, if anything, to do with terrorism. The new rules infringe upon our right to counsel and to be free from unreasonable searches, freedoms we have fought hard to protect throughout our history. There is neither judicial oversight nor legislative authorization for the rules.”
And Bar President Russell added: “ I get quite concerned when an Attorney General of the United States suggests that based on his words someone is going to listen in on a conversation between a lawyer and a client. That’s draconian.”
It remains unclear how widely the government will use its new powers, but Smith has lent his voice to a chorus of grave concern that the government has already gone too far.
“The barbaric attacks led some lawmakers to propose doing away with basic protections that make up the American system of individual freedom. However, we cannot suspend, delay, ignore or overlook the constitutional rights of people arrested and tried in our country,” Smith said.
“Nothing is more essential. We must do everything possible to ensure that our civil liberties are protected. It would be wrong to allow our federal government to target individuals in a criminal justice system that no longer has the traditional constitutional checks and balances, the normal and necessary legal safeguards that have continuously developed since July 4, 1776.”
SO WHAT SHOULD LAWYERS DO?
Russell says that he has a “great deal of confidence that our federal courts will filter this out.”
And throughout Florida, he said, “I can tell you that so far in my communications and in my speeches to members of the judiciary around the state, they have been quite receptive when I say to them: ‘You are guardians of the Constitution. And nothing justifies throwing away those principles.’”
To all the lawyers who appear before those judges: “What I see Florida’s lawyers doing is not being afraid to challenge this when it affects their clients. That’s where the system works,” Russell said.
“It’s ultimately going to come down to some lawyer who is going to have some client who is affected by this. And you have to be prepared and have the courage to take it into the court system and challenge it.
“I hope the court system will react appropriately and constitutionally to this challenge. Case by case, I am quite confident that our legal system will handle this in a constitutional way.”
As Smith put it:” The balance we must strike is difficult. We are treading on new ground. But we must not sacrifice the rights of any person regardless of race, financial status, color, creed, religion, and gender – not at this time, not ever. This is a charge that must be met under law, and leadership in that effort must come from lawyers.”