Law
enforcement and intelligence agencies often have solid, actionable
intelligence about a terrorist threat, but the information is not
of the sort sufficient to secure a conviction under existing
criminal laws. In those circumstances, what should be our response?
Right now, America has no coherent legal system in place to answer
that question. One of the gaping holes in America's response to the
terrorist attacks of September 11 is that we have not yet
undertaken the difficult task of defining a legal regime in which
actionable intelligence may be acted upon.
Rather, our response relies on a patchwork
of laws that pre-date September 11 and that were designed with
other goals in mind--laws relating to material witnesses,
immigration, and enemy combatants in a traditional war between
nations. And that response has been only partially successful in
the courts. We cannot afford to continue with this inadequate and
haphazard legal system. America needs to develop a coherent
structure of laws and procedures to deal with the interaction of
intelligence information and the judicial system.
America's situation is not unique. Other
countries, most notably the United Kingdom, have faced similar
terrorist threats and have developed legal structures that permit
the government to act upon intelligence information (through
preventive detention) while also ensuring (through burden of proof
standards, procedural protections, and oversight) that civil
liberties are not infringed upon. We should follow, generally, the
English model in developing an American legal system that meets our
contemporary needs.
The Criminal Justice System
and Actionable Intelligence:
A Fundamental Disconnect
To
see the need more clearly, consider two recent real-world examples:
New Jersey police observed a man who appeared to be of Middle
Eastern descent, dressed in business clothes near a vital bridge.
His actions, though innocent on their face, were somehow out of the
ordinary and they aroused the suspicion of a police officer, who
approached the man. It turned out that the man was wearing a wet
suit beneath his business suit, and was carrying a knife and an
underwater camera. In the second case, an individual approached a
border station in Texas seeking entry into the United States. A
check of the Terrorist Screening Center's watch list of suspected
terrorists disclosed he was on the list.
What
then? In other
words, what should we do if we identify individuals whose actions
(or other information about them) gives us grounds for believing
they are terrorists who seek to do us harm? The question is
obviously quite serious, and the easy answer--to arrest them--is
often not available. Indeed, the man in New Jersey was never
detained, and the individual at the border was merely turned back
from the entry point (and, incidentally, turned back at three more
entry points over the next several days). Did the government do the
right thing in those cases?
The
hearings before the National Commission on Terrorist Attacks Upon
the United States have made one thing clear: Prior to September 11,
there were systematic problems that prevented appropriate
coordination among the various intelligence agencies and between
the intelligence community and law enforcement. Fixing that problem is a long and
difficult task--one that America has already begun.
But
even if we achieve a much better coordination structure that
seamlessly integrates intelligence and law enforcement information,
that would answer only half the problem.
As
those involved in intelligence collection know, much intelligence
information--even the best and most accurate information that is
directly actionable--is not suitable for use in our existing
criminal justice system. Consider just a few of the
possibilities:
- Highly accurate information may have been
provided by a foreign government, but only on the condition that
the information never be publicly disclosed, or indeed, that the
fact of the government's cooperation with us never be disclosed.
Using this information, even in the controlled setting of a
criminal trial governed by the procedures of the Classified
Information Procedures Act (CIPA), would dry up the source of information
and end its utility for all future events.
- Information of unquestioned veracity might
have been gathered through sources and methods that are not known
to the public or to foreign powers and terrorists. Public
disclosure that the information is in the possession of the United
States would compromise the source or method and render it
useless. There is
some anecdotal evidence that this has already occurred. During the
first World Trade Center bombing trial, the government disclosed
that it had the capacity to intercept Osama bin Laden's satellite
phone calls. It is reported that, naturally, he ceased using
satellite phones.
- Evidentiary rules requiring disclosure of
evidence can conflict with national security needs. One need only
look at the difficulties created by the trial of Zacarias Moussaoui
to recognize this problem. Criminal trial rules require that he
have access to al-Qaeda operatives (reported to be Khalid Sheikh
Mohammed and Ramsi Binalshibh) as a potential witnesses with
allegedly favorable evidence. Yet allowing Moussaoui (or his lawyers)
access to Mohammed and Binalshibh while they are still being
interrogated would be a foolhardy compromise of vital intelligence
assets.
- The rules of evidence in a court of law
strictly limit the admissibility of information. Documents and
photographs must be authenticated. Hearsay is not allowed. Yet often the best,
most useful intelligence information cannot meet these legal
requirements. A stolen document (or one intercepted by electronic
means) often cannot be authenticated. The individual who
surreptitiously took a photograph might not be available in an
American court to authenticate it. And sometimes the best oral
intelligence ("At a meeting last week, Osama said . . .") is
rankest hearsay.
- Finally, one must confront the new reality
posed by the "problem" of interrogation. Virtually every
practitioner of interrogation maintains that one of the most
successful means of productive interrogation is isolation. As the
Fourth Circuit has acknowledged, there is substantial force to the
general argument that interruption of the interrogation process
could "have devastating effects on the ability to gather
information" from those who have been captured. Of course, the inability to gather
information of this sort could well result in the failure to
prevent future terrorist attacks. However, isolation of a terrorist
suspect--that is the denial of access to him by anyone--is
inconsistent with existing practices, including rules relating to
the provision of counsel.
These are but a few examples of the ways
in which the intelligence-gathering function does not mesh with our
conception of law enforcement and the legal system. One can readily
imagine any other number of conflicts (disclosure of witness
identities would endanger them; premature disclosure of the
penetration of a terrorist network would cause the network to
evaporate; etc.) in which the methods of intelligence, though
perfectly adequate and acceptable in their own sphere, are
unacceptable in the traditional criminal legal realm.
Moreover, not all intelligence information
is as substantial as that required in the legal system. Certain
intelligence may be enough to raise substantial suspicion (and,
thus, warrant turning someone away at the border) but it may (and
often does) fall far short of information that would establish
someone's terrorist intent in a forum requiring proof beyond a
reasonable doubt.
Thus
the question: What do we do? If, indeed, U.S. law enforcement and
intelligence agencies have solid actionable intelligence of a
terrorist threat, and if that intelligence is sufficiently
particularized that it allows the identification of an individual
or group of individuals, what should be the response in those
limited situations in which existing legal rules are not fully
consistent with what seems to be the most prudent response?
Commitment to the existing legal system may, as noted, be
impossible to sustain without unacceptable risks and costs. But
detention outside the existing legal structures is also
unacceptable. What then?
The American Post-9/11 Response
Our
lack of a coherent answer to this question explains some of the
most problematic and controversial actions taken by our government
after September 11. The use of material witness warrants; the
questioning and arrest of Arab immigrants in the aftermath of 9/11;
and the detention of "enemy combatants" are all responses to this
conundrum. On the merits, these policies have plausible legal
grounds. They have engendered much discussion.
Our
concern here is not, however, with their legal justification.
Rather it is that, examined objectively, the responses reflect a
simple fact: We lack a settled, structured legal system for dealing
with actionable intelligence. In other words, we lack a regularized
process for preventive detention in lieu of criminal trial. As one
observer has put it (albeit in a different context): "America was
put off balance by September 11." This section outlines the temporizing
responses the government has taken, which were mostly in the nature
of trying to accommodate existing legal procedures to a new
reality--in effect, squeezing a square peg into a round hole.
Material Witness Warrants
One
of the first legal responses to the problem of actionable
intelligence without a satisfactory legal structure was the use of
material witness warrants. Material witness warrants
traditionally functioned exactly as their name implies--they were
used to arrest and detain material witnesses to criminal events
when it was anticipated that the witnesses would flee the
jurisdiction to avoid the obligation of giving testimony.
Immediately after 9/11, a number of individuals suspected of
involvement in terrorist activities were detained through the use
of material witness warrants. Some detainees fit the traditional
paradigm (at least in part) because they were held pending their
testimony before a grand jury. But the traditional paradigm was
broken when the detention of some witnesses continued for a time
despite their willingness to give testimony and have it preserved.
It was further broken, to the extent that it was a constraint, when
one detainee (Jose Padilla) initially held on a material witness
warrant, was remanded to military custody as an "enemy combatant."
The material witness provisions became, in effect, a proxy for a
preventive detention program.
Challenges to this practice were swift in
coming. Those opposing the use of material witness warrants in this
manner challenged their use in pre-trial investigations. Although
the law had historically been construed to approve the use of
material witness warrants for grand juries, at least one court initially held that
the post-9/11 jailing of witnesses pending investigation was a
constitutional violation. Eventually, however, the courts held
that the material witness statute was applicable to pre-trial
investigations, and that the government could lawfully detain a
witness, notwithstanding the witness's willingness to have his or
her testimony preserved, provided that the grounds for detention
were subject to judicial review under the standard bail statutes.
However, the approval of material witness
warrants as a legal tool cannot obscure the practical reality that
they were being used for a purpose different from that which
Congress initially intended--the detention of witnesses despite the
lack of any real need for their testimony. Because this legal
structure is not designed to adjudicate issues now before it--the
long-term detention of suspected terrorists rather than the
short-term detention of potential witnesses--it lacks any number of
legal checks on the exercise of executive authority. Judicial
review is either standardless or based upon standards (such as the
bail statute) designed for a different context. The burden of proof
placed upon the government to justify its detention is ill-defined.
There is only a limited opportunity for those detained to challenge
their detention and secure the assistance of counsel. Moreover,
because the use of material witness warrants occurs at the
interstices of law and intelligence gathering, there is little, if
any, sustained congressional oversight of the use of the power.
"Hold Until Cleared"
The
policies instituted immediately after September 11 included the
arrest of many Arab immigrants, and their detention, mostly on
relatively minor immigration law violations.
In
reviewing these detentions, the Inspector General of the Department
of Justice concluded that approximately 762 aliens were arrested in
connection with the investigation of the September 11 attacks. The
vast majority of those arrested were detained pursuant to civil
immigration law authority for remaining in the United States after
expiration of their entry visas or for entering the country
illegally.
Thereafter, pursuant to government policy, each of the detainees
was held in the United States until such time as they were
"cleared" by the FBI of any suspicion that they were connected to
terrorists.
The
Inspector General did not criticize this policy, vel non. Moreover, he
acknowledged that in all but one instance the detainees arrested
were held on valid immigration charges. It nonetheless remains the case that
the implementation of the "hold until cleared" policy was
over-inclusive and resulted in identifying far more immigration
violations than individuals connected with terrorism.
Given the extremity of the times in which
these detentions occurred (most arrests were in New York City or
surrounding areas within three months of the attack) the reaction
of government authorities was understandable. With the World Trade
Center smoldering in lower Manhattan a robust response was
appropriate. In the end, however, immigration law served as a
substitute for terror detentions--a substitution made necessary by
the absence of any other viable legal mechanism.
Enemy Combatants
Many
of the same observations can be made regarding the far better known
cases involving the detention of Yasser Hamdi and Jose Padilla as
"enemy combatants." Hamdi and Padilla were both American citizens,
one caught on the field of battle in Afghanistan and the other
detained as he entered the United States at Chicago's O'Hare
airport. The government designated both as enemy combatants subject
to special detention rules. These included, at least initially, a
prohibition on contact with counsel and a contention that the
detention decision was subject to limited judicial review.
Once
again, the government's conduct was a response to a genuine need.
Although we need not take the government's concerns at unquestioned
face value, there is certainly some factual basis for thinking that
Padilla, for example, may have planned significant terrorist
activities in the United States. Yet it is by no means clear that at
the time of his initial detention, Padilla could have been
criminally charged, or that if he had been charged, the case
against him could have been sustained in a federal court under
prevailing constitutional and evidentiary standards. Thus the
conundrum recurs: how to treat those whom credible evidence
suggests are engaged in terrorist activities, but for whom the
legal system was not designed.
The
Supreme Court has now concluded that such detentions must be
subject to more rigorous review than that initially afforded by the
government. In
doing so, the Court recognized, that the capture and detention of
those who would wage war against the United States was a universal
historical practice. The Court recognized, however, that the "war"
in which we are engaged has unusual characteristics--not the least
of which is that some aspects of the war have no foreseeable
termination. (Others, such as the conflict in Afghanistan, are more
reasonably viewed as subject to closure.) In recognition of this,
the Court determined that the Constitution required some form of
process for reviewing detention claims, including notice of the
factual basis for detention and an opportunity to rebut the factual
assertion before a neutral decision maker. The Court left for
another day more detailed questions about precisely what form this
process would take, including questions about the admissibility of
evidence, the burden of proof, and the identity of the
decisionmaker.
The
Court's determination makes palpable the need for congressional
action in this area. The question remains: Exactly what sort of
process ought to be provided?
What
is needed is a new legal architecture to govern the detention of
suspected terrorists. Any such system must provide a legitimate
process by which we can adjudge those suspected of terrorism as
threats and a means of ensuring that the process is used
appropriately, not abused. The challenge is an exceedingly
difficult one--one that perhaps admits of no ideal solution. But
the absence of a comprehensive, integrated legal structure in
current law has led to an unsatisfactory ad hoc approach. It is
likely that the detention powers described in this paper will be
needed sometime in the future. It is certain, in our view, that the
exercise of those powers is better constrained, and civil liberties
better protected, when the exercise is regularized. Indeed, in the
absence of any thoughtful effort to construct such a legal system
before another terrorist attack on American soil, it is all too
likely (indeed, almost inevitable) that the reaction will be
similar, if not more extreme. Thus, the need for some new system of
law appears palpable.
English Legal Architecture for
Detention
Fortunately, the problem is not new. The
English response to Irish terrorism affords a useful model for the
structure of an appropriate U.S. legal architecture. To see this,
it is useful to begin before the advent of an English legal system
of detention, when British detention policy was ad hoc and
irregular--that is to say, when the English were in the same
position with respect to Irish terrorists that America is in today
with respect to al-Qaeda.
British Policy in Northern Ireland
1971-1972
In
response to escalating violence from the Irish Republican Army, on
August 9, 1971, British Prime Minister Edward Heath authorized a
policy of detention (then called "internment") in Northern Ireland.
In the months leading up to the decision, bombings occurred nearly
twice daily, and the number of violent incidents continued at a
high rate. One observer, Tony Geraghty, described the policy of
internment as flawed, and noted that the violence only increased in
1972, including nearly four bombings per day.
Once
decided, implementation of the policy was left to lower level
military personnel without adequate oversight from senior officers
or political leaders. Interrogations were designed to produce
tactical level information for battlefield commanders, and required
that the prisoner's resistance be broken without leaving visible
evidence. Hence, interrogators used such techniques as sensory
deprivation, exhaustion, humiliation, and fear. In spite of the
harsh interrogations, no prisoners died during internment in 1971.
By December, nearly 1,600 people had been detained at three
separate facilities, including the main interrogation center at
Ballykelly Barracks, a former Royal Air Force base, although over
900 had been released. Some were physically abused, but most of the
treatment was psychological. The European Court labeled some
treatment as "degrading and inhumane."
The
process yielded significant short-term intelligence, which enabled
a marked increase in the collection of arms and munitions, but the
success was short-lived. Because of the techniques employed and
resulting scandal, as Geraghty notes, the IRA received a boost in
credibility. The British suffered from a lack of inside
intelligence sources for a long time after, and were further
hampered by limitations placed on interrogations.
Detention in England Today
Nonetheless, the English were faced with a
quandary. Although the interrogations had been stopped and
large-scale internment finished, there remained a small class of
individuals for whom release was not a reasonable option.
Initially, this perceived necessity applied almost exclusively to
members of the Irish Republican Army. Today, the English law has
been updated to include within its ambit other terrorists whose
detention might be appropriate. In outline form, the English law
provides:
- Upon certification by the Home Secretary,
a suspected international terrorist may be detained;
- That detention is subject to review by a
Special Commission;
- The detained individual is entitled to
notice of the grounds for his detention;
- The detainee is entitled to representation
in the appeal of his detention from amongst a special cadre of
lawyers cleared to handle classified information;
- During the appeal, the detainee's lawyer
may cross-examine witnesses and submit written argument to the
Commission;
- The Home Secretary appoints an independent
reviewer to examine the operation of the detention laws and to
review each individual case of detention.
The Outline of An American Response
America needs a more thoughtful,
comprehensive legal response to terrorism. It must "regain [its]
balance" and adopt
a system of laws that regulate and constrain executive behavior,
while simultaneously allowing an effective response in those very
narrow circumstances where a response is necessary, but the
existing legal structures are inadequate. Here we outline what such
new legal system might look like.
Structure of a Proposed Law
First, the regime of preventative
detention that we envision should be limited to cases of terrorism.
This requires a narrow definition of terrorism--narrower than that
used in current law. Detention will be appropriate only in
situations involving individuals who:
- act or threaten to act in a manner that
involves serious violence against a person and/or in a manner that
risks the health and safety of the public; and
- does so to influence government policy or
intimidate the public; and
- does so for the purpose of advancing a
political, religious, or ideological cause.
In
other words, the "gate" for the preventative detention system must
be very narrow.
Additionally:
- There must be a rigorous certification
process at the front end. No individual should be subject to
detention unless the Attorney General first certifies as to its
necessity. The certification should aver that credible evidence
exists that: (a) the individual to be detained intends to commit a
terrorist act; (b) the individual is affiliated with a terrorist
organization; and (c) the existing criminal legal justice system
cannot be applied to the individual without compromising national
security.
- This certification should be subject to
review in court. The preferred method of review is in an
adversarial process in which the detained individual is represented
by counsel. To effectuate assignment of counsel for proceedings in
which classified materials are considered, the government should
create a group of pre-cleared defense counsel (perhaps as part of
the Federal Public Defender system) available for assignment to the
detained individual(s).
- Proceedings to determine whether detention
is appropriate would have the following components (as required by
the Hamdi) decision:
- Notice to the detainee of the factual
basis for detention;
- An opportunity to rebut the detention
evidence;
- A neutral decision maker. To regularize
the process and insulate it from executive influence, we would
recommend the creation of a new adjudicative court akin to the
Foreign Intelligence Surveillance Court;
- Evidentiary rules would be relaxed and
procedures modified to account for the necessity of using
classified information;
- The government would bear the burden of
proving the grounds for its detention decision by proof that meets
the clear and convincing evidence standard.
- In rare circumstances the government may
have grounds for wishing to delay the detainee's appearance in
court and access to counsel, so that ongoing interrogation can
continue. The initial period of delay should be no more than 30
days and any extension should be periodically reviewed and
justified (to the court) by a clear and convincing showing that a
further delay is likely to provide additional intelligence.
- To ensure that the preventive detention
authority is not abused, there should be routine, systematic
oversight. Review of the general process should, of course, reside
with the congressional intelligence committees. Beyond that, as in
the United Kingdom, each individual detention decision should be
independently reviewed and the subject of a public report. Possible
entities for conducting the review might include the President's
Intelligence Oversight Board or the Inspector General of the
CIA.
Conclusion
In
calling for Congress to enact legislation concerning this matter,
we are not alone.
There are some who will disagree with making the effort at all, who
will say that Americans should never allow preventive detention in
any form because it is an unwarranted threat to liberty.
The
response to this criticism is threefold: First, the criticism
blinks reality. We already have incomplete and irregular forms of
preventive detention because it is a necessity. We advance liberty
when we regularize the practice, cabin it to narrow circumstances,
and use it sparingly. Second, as detailed above, other countries
(such as the United Kingdom) have managed to adopt very limited
forms of preventive detention without becoming noticeably "unfree"
or "authoritarian." Adoption of similar legal forms in the United
States will not render us an authoritarian regime either.
Finally, and most important, to reject
preventive detention in those rare circumstances in which it is
necessary is to exalt liberty at the expense of security. The founding of the
American Republic was for the purpose of constructing a political
system of ordered liberty. It simply cannot be right to
unilaterally prefer liberty. Liberty is not an absolute value; it
depends upon security (both personal and national) for its
exercise. As Thomas Powers has written: "In a liberal republic,
liberty presupposes security; the point of security is liberty." The growth in danger
from the consequences of the failure to stop terrorism necessitates
altering our tolerance for governmental order. More fundamentally,
our goal should be to maximize both order and liberty.
We
do that best, not by closing our eyes to the necessity of security,
nor by allowing security concerns to run rampant without oversight,
but rather by taking appropriate steps to ensure that the powers
given to the executive branch are exercised thoughtfully and with
care, and subject to continue review and oversight by both the
judiciary and the legislative branch. This concept of checks and
balances was the fundamental insight of the Framers of the
Constitution--and is as applicable today as it was at the time of
the Founding.
Paul
Rosenzweig is Senior Legal Research Fellow in the Center for
Legal and Judicial Studies, at The Heritage Foundation and Adjunct
Professor of Law at George Mason University. James Jay Carafano,
Ph.D., is Senior Research Fellow in Defense and Homeland
Security in the Kathryn and Shelby Cullom Davis Institute for
International Studies at The Heritage Foundation. This paper
will be part of a larger project of The Heritage Foundation, a
book-length treatment of homeland security issues generally,
entitled Winning the Long War, that is scheduled for publication in
early 2005.