guished that precedent. It could not be distinguished on the grounds that Milligan involved a citizen, since one of the saboteurs was a United States citizen. Instead, the Court said that the saboteurs' case, unlike Mill, involved admitted agents of a hostile government "who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property...." 317 U.S. at 35. Whether today's terrorists are more like Lamdin Milligan, or the World War II saboteurs, the Military Order applies far more broadly than the narrow class of enemy belligerents who may constitutionally be tried in a military commission, if such trials were authorized by Congress with appropriate safeguards. The Constitution plainly does not allow this. Finally, it should be noted that Quirin remains an exceptional case for other reasons as well, as we now know from historians. It was a rare case in which the government departed from its usual practice of using military tribunals only against captured enemy soldiers in a zone of military operations. Many of these revelations undercut any argument for relying on it today. 13 When the World War II saboteurs were caught, following the defection of one of their number, there was an immediate public outcry. J. Edgar Hoover, then Director of the Federal Bureau of Investigation, was worried that the ease with which the saboteurs had penetrated the American coastlines and moved freely about the country would damage public morale-not to mention his own image. In public, he made it sound as though the FBI had solved the case on its own, without the extensive help of the defector. Indeed, other saboteurs may have intended to defect as well. A military trial would give the government greater secrecy-but this was needed not to protect national security, but to protect Hoover's image. Lacking today's extensive criminal laws against terrorism, the government was concerned that any offense for which the saboteurs would be tried would result in only a minor prison sentence. The government knew it was on shaky ground in using military tribunals where the criminal courts were open, under Milligan. Nevertheless, President Roosevelt made clear he intended to see the saboteurs punished, even at the expense of the Constitution. "I want one thing clearly understood, Francis," he told Attorney General Francis Biddle. "I won't hand them over to any United States marshal armed with a writ of habeas corpus. Understand?" 14 President Roosevelt need not have been so worried. The Supreme Court quickly affirmed the prisoners' death sentences. The Court announced it would issue a full opinion later. The sentences were carried out. Upon further reflection, however, the justices found the case was not nearly as simple as they thought. Milligan was not so easily distinguished, and the justices found themselves disagreeing on basic points, some of which could have changed the result if they had been considered at the time. Only after Justice Frankfurter issued a remarkable, and unusual, patriotic plea for unanimity did the justices fall in line. 15 Justice Frankfurter later remarked that Quirin "is not a happy precedent." Justice Douglas said, "Our experience [in Quirin] indicated to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it. Because once the search for the grounds. . .is made, sometimes those grounds crumble." 16 The Supreme Court's record on civil liberties in World War II does not inspire confidence. It was, after all, only two short years between Ex Parte Quirin's "bending" of constitutional rules and the most shameful Supreme Court decision of the century, which upheld the internment of Japanese Americans. See Korematsu v. United States, 323 U.S. 214 (1944). Under the Constitution, military tribunals can be used only in narrow circumstances. They must be authorized by Congress, and may be used only against clearly identified "unlawful enemy belligerents." They have ordinarily been reserved for those captured in a zone of military operations, and their use in other situations has been questionable. The Military Order simply does not respect these basic constitutional limits on military tribunals. 13 See Daniel J. Danelski, The Saboteurs' Case, 1 Journal of Supreme Court History 61 (1996). 14 Id. at 68. A habeas corpus challenge was to be the prisoners' only real appeal. While the military commission permitted review by the President, it seemed unlikely such review would be meaningful, as the President was mainly concerned with the most fitting method of execution. V. MILITARY TRIBUNALS MUST COMPORT WITH BASIC DUE PROCESS AND INTERNATIONAL STANDARDS Finally, and perhaps most importantly, the order utterly fails to account for the evolution of both international law and American constitutional law since World War II, when military commissions were last extensively used. It does not guarantee due process for the accused and could permit trials that our own government has said are fundamentally unfair and violate basic international standards. If Congress chooses to authorize military tribunals for a limited class of accused terrorist war criminals, it is imperative that such standards apply. In 1942, international human rights law was in its infancy. Today, a host of international instruments, including treaties to which the United States is a party, provide guarantees of fundamental due process to anyone imprisoned by the state. For example, Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, guarantees liberty and protects "the security of the person" from arbitrary arrest and detention. Article 14 requires the accused to be given a fair trial. The procedures that the Military Order contemplates, however, fall far short of these standards, as the United States has recognized in its insistence on compliance with human rights around the world. For example, as noted in a letter to President Bush from Human Rights Watch, dated November 15, 2001, the United States gov ernment • successfully insisted that a military terrorism trial in Peru against United States citizen Lori Berenson be set aside in favor of a trial which the State Department demanded be held "in open civilian court with full rights of legal defense, in accordance with international judicial norms," • condemned Nigeria for convicting and executing environmental activist Ken Aiwa and eight others after a trial before a special military court, • condemned Egypt, in the State Department's most recent human rights report, for using military tribunals against suspected terrorists, noting that "military courts do not ensure civilian defendants' due process before an independent tribunal," • expressed serious concern about closed tribunals in Russia, where foreigners, including Americans, were convicted of espionage. Already, these concerns have complicated efforts to extradite suspected terrorists from Spain and other European countries. 17 Likewise, in 1942 the Supreme Court had yet to apply most of the guarantees of the Bill of Rights to trials in the state courts, viewing these as rights peculiar to the federal system. Over the next half century, however, many of the Bill of Rights' guarantees were extended to trials in state court. These constitutional protections did not directly apply to state courts but instead were seen as fundamental to a fair system of justice. For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court found that the right to assistance of counsel, protected by the Sixth Amendment, was indeed a fundamental right that applied to the states under the Due Process Clause of the Fourteenth Amendment. In so ruling, the Court overruled an earlier case, Betts v. Brady, 316 U.S. 455 (1942) which had ruled the right was not fundamental to a fair trial. But the Military Order greatly restricts the right to counsel, who will be a military officer chosen by the Department of Defense. These Supreme Court decisions paralleled statutory reforms of the Uniform Code of Military Justice, which now uses judges, not lay military officers, and permits review by a civilian court and by the United States Supreme Court. So today, it is not sufficient for the Supreme Court to say, as it did in 1942, that the "Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission. ." Quirin, 317 U.S. at 45. Under current law, even if trials are not held in a federal court, they must observe basic constitutional rights. If military tribunals were authorized by Congress today, they would have to observe basic constitutional norms. VI. CONCLUSION The Administration's proposal to substitute military tribunals for the regular justice system poses a profound challenge to this nation's ability to preserve civil liberty as it combats terrorism in the wake of the heinous attacks on the World Trade 17 See T.R. Reid, Europeans Reluctant to Send Terror Suspects to U.S., Washington Post, Nov. 29, 2001, at A23. Center and Pentagon on September 11, 2001. The trial of crimes in our constitutional system includes a host of procedural protections vital to ensuring the government gets it right, punishing the guilty-and only the guilty. Some of these rights were affected by Congress's passage of the USA Patriot Act. The President's Military Order has the effect of rendering the compromises on detention of noncitizens made in the USA Patriot Act meaningless in those cases to which it applies. According to its supporters, the President's Military Order does not simply limit constitutional rights in terrorism trials. It abolishes them altogether. The procedures to be followed under the President's Order simply will not be a matter for the Constitution, but rather for the pleasure of the Executive. And if the Executive chooses to violate even those rights it decides to confer, the order purports to preclude review at any level of federal judiciary, including the Supreme Court of the United States. We are told, however, that military courts will only be used against accused terrorists. Attorney General Ashcroft informs us that, once accused of terrorism by our government, such persons "are not entitled to and do not deserve the protections of the American Constitution." 18 It is worth repeating the Supreme Court's firm rejection of a similar argument well over a century ago: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." 19 The Supreme Court made clear the stark choice that would face our nation if military rule was not expanded beyond the narrow circumstances permitted by the Constitution, but was permitted without Congressional authorization and where the civil courts were open, and their process, unobstructed. Then, the Court observed: "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish." 20 20 Id. at 124-25. But does the advent of modern terrorism "change everything"? The strength of our democracy has lied in our ability to resist such arguments. In Duncan v. Kahanamoku, 327 U.S. 304 (1946), the Supreme Court faced a similar argument when it considered the continued constitutionality of martial law in Hawaii, during World War 11, after the immediate threat of invasion had passed. The government insisted that the invention of nuclear weapons required new thinking for a new kind of war that would not permit the luxury of rights enshrined in an Eighteenth Century constitution. The Court rejected it. Justice Murphy said, "That excuse is no less unworthy of our traditions when used in this day of atomic warfare or at a future time when some other type of warfare may be devised." Id. at 330-31 (Murphy, J., concurring). That future time may now be upon us, but the excuse is still unworthy of our Constitution. Trial by military tribunal represents the gravest possible abrogation of civil liberty. Such use must be carefully limited to the most pressing circumstances for civil government to survive. Congress must act to ensure that these limits, and its authority, remain intact. 18 Naftali Bendavid, Critics Attack Tribunal Proposal, Chicago Tribune, Nov. 15, 2001. 19 Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866). 20 81-998 D-13 December 4, 2001 The Hon. Patrick J. Leahy The Hon. Orrin G. Hatch Washington, DC 20510 Dear Senator Leahy and Hatch: Enclosed is a Statement of Position of the American College of Trial Lawyers respectfully opposing the interim rule of the Department of Justice authorizing the monitoring by the Government of communications between prison inmates and their lawyers. The College consist of more than 5,000 invited members from the United States and Canada. to qualify for invitation to membership, our members must have a minimum of fifteen years of active trial experience and have been committed to the highest ethical standards. The College draws its members from the plaintiffs' bar and the defense bar, and includes, as well, prosecutors and criminal defense lawyers. The College is a professional organization dedicated to improving the administration of justice. The interim rule is of profound concern to the College for the reasons set forth in the Statement of Position. I respectfully request that this letter and the Statement of Position be made part of the record of the important hearing being held on this matter by the Senate Judiciary Committee. Very Truly yours, STUART D. SHANOR President Statement of American College of Trial Lawyers POSITION The American College of Trial Lawyers ("the College ") respectfully but firmly opposes the U.S. Attorney General's recent promulgation of an interim rule authorizing the Government, without prior court approval, to monitor communications between persons confined in prison and their lawyers. The College, a professional organization consisting of more than five thousand lawyers invited to membership after a minimum of fifteen years trial experience, is dedicated to improving the administration of justice. The College recognizes the need for the Department of Justice to take action to combat terrorism. But those actions must not violate constitutional and other important legal rights related to the attorney-client privilege. They must not violate the constitutional right of those imprisoned to the effective assistance of counsel. The attorney-client privilege is essential to our adversary system of justice. As Chief Justice Rehnquist has stated for the Supreme Court, "[Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader interests in the observance of law and administration of justice." The Government's unilateral usurpation of authority to monitor confidential communications between persons it has imprisoned and their lawyers will destroy this "full and frank" communication. Under the rule, the lawyer and client are to be told their communications are being monitored. Knowing that the Government is listening to what is said, clients will not confide in their lawyers. Lawyers will not provide confidential advice to their clients. Indeed, their ability to do so will be undermined because their clients will not have given them the "full and frank" communication necessary for a lawyer to provide sound advice. This will defeat the purpose of the attorney-client privilege which, as Chief Justice Rehnquist has also explained, "exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Further, this intrusion is unnecessary. Existing law allows for monitoring attorney-client communications under procedures which pass constitutional muster. First, the Government must have "probable cause" or "reasonable grounds" to establish that a lawyer is assisting or conspiring with his client and/or others to engage in terrorist activity, or is being used unknowingly for such a purpose. Second, the Government under existing law can then obtain authority from a court to wiretap or intercept these communications and, indeed, may do so without advising the lawyer and client that their communications are being intercepted. Importantly, however, prior court approval is a constitutional and statutory requirement. The Government cannot, in contrast to the interim rule, act unilaterally. "Probable cause" or "reasonable grounds" to establish the likelihood of ongoing criminal conduct is also a constitutional and statutory requirement for such an intrusion. The far more lenient standard of "reasonable suspicion" permitted by the rule to monitor attorney-client communications does not satisfy this constitutional requirement, even if sanctioned by a judge. Certainly, that standard is unacceptable when the Government acts unilaterally, without court approval. To any claim that national security interests argue against permitting prior approval by any member of the federal judiciary, the Foreign Intelligence Surveillance Act ("FISH"), if amended, could provide a statutory mechanism for requiring and obtaining prior judicial approval based on probable or good cause. It is no defense or justification, as the Department of Justice claims, that this rule will apply to only a few "inmates." One is one too many. If allowed to apply to a few, whoever they may be, the lenient standard of "reasonable suspicion" to be used by the Government can readily have expanded application to many. Nor is it a defense or justification that a "firewalled" or separate Department of Justice "privilege team" will monitor the attorney-client communications and disclose their contents to investigators and prosecutors only with court approval. As explained above, the known existence of the monitoring already will have "chilled" the "full and frank" communication that the Supreme Court has held the privilege is designed "to encourage." There will be virtually nothing of substance to monitor, but the inmate will have been denied effective assistance of counsel. "[T]he purpose of the privilege. . . to encourage clients to make full disclosure to their attorneys'," as the Supreme Court has said, will have been completely frustrated. For more than sixty-five years, the United States Supreme Court has held that communications between lawyer and client intended to further a crime or fraud are not protected by the attorney-client privilege. We agree with this holding. But this determination is, under Supreme Court law, to be made by a court, not unilaterally by the Executive Branch, an adversary to and custodian of an inmate seeking legal advice from a lawyer. The American College of Trial Lawyers respectfully urges the Government to rescind the interim rule and not to promulgate it as a final rule. Statement of the American Council of Chief Defenders, Washington, D.C. The American Council of Chief Defenders (ACCD) is gravely concerned by the U.S. Department of Justice Rule permitting monitoring of attorney-client commu nications. The new DOJ rule is not necessary to advance legitimate law enforcement efforts to secure public safety. Procedures and standards already exist which give law enforcement the ability to intercept communications under circumstances in which there is probable cause to believe a crime is taking, or is about to take place. The lack of a requirement for judicial intervention strips the criminal justice process of one of the important "checks and balances" which ensure a fair system. Requiring a judge to authorize monitoring of such communications is a critical means by which our system protects against harmful and unnecessary law enforcement mistakes or excesses. Judicial review is a critical component of the right to a fair process that is the foundation upon which our justice system is built. Monitoring attorney-client communications will deny individuals the right to a fair trial. The American public views access to counsel as an essential ingredient of a fair trial. The DOJ rule eradicates that right by precluding counsel, who are ethically bound to protect the privilege, from conversing with individuals whom they represent. Just as the doctor-patient privilege aids doctors in making accurate diagnoses, the attorney-client privilege is an essential aspect of the attorney's function. |