Duke Magazine-Q & Homeland Insecurities-Jul/Aug 2002

August 1, 2002

Duke Magazine-The Culture of the Gun  

Homeland Insecurities

While Tom Ridge testified on Capitol Hill and John Walker Lindh pled guilty before a federal grand jury, the Bush administration contemplated a new Department of Homeland Security. Professor of Law and Public Policy Studies Christopher Schroeder comments on the biggest reorganization of government since the days of FDR, and on the tension between security and individual liberties.

Schroeder: an "armed conflict" of words
Schroeder: an "armed conflict" of words
photo:Les Todd

By combining all 100 agencies and 170,000 employees into a single department, President Bush intends to reduce bureaucratic obstacles. Will this actually encourage the analysis of intelligence?

We clearly have to reorient some priorities and this reorganization is the way to get the attention of bureaucrats by changing the organization chart, changing who they report to. At the same time, the functions that are going to be performed are so disparate that I think the new department stands the risk of becoming just an organization chart where there are within it components doing thoroughly stand-alone activities without a lot of true integration. It's possible that focusing all of our attention on the organization chart deflects attention from working on the innards of the different agencies and making some more retail-level improvements--not forming a brand new department but working at the individual-agency level to reorder priorities, refocus budgets, hire different kinds of people.

Is there anything to be said for the CIA, FBI, NSA, and DIA being combined into a super-spying, counter-terrorism organization? Or would that, along with John Ashcroft's freeing of restrictions on the FBI, pose threats to personal privacy?

Yes, and then the next question is, "how big a threat?" We are in uncharted waters now, because we want more preventive surveillance, and to do that you've got to establish the equipment that will enable you to do it. The problems we've gotten into in the past have been primarily problems of abuse, of there being controls people have ignored. So that's the risk. Create a lot of authority for people to sit in on meetings, go onto the Web, keep track of innocent behavior, and you create the possibility that that information is going to get misused. The last time we had a big blowup about this kind of civil-liberties issue was in the Seventies, when, as a result of Watergate, there were disclosures of the FBI tracking Martin Luther King Jr. and building a dossier on him. We passed some laws and the FBI placed some internal restrictions on the way it would operate that most people think were pretty much complied with. In fact, one of the objections about the way we ran intelligence gathering before September 11 is that we had been too punctilious in observing these procedures that limited what the FBI could do, the layers of bureaucracy that you had to go through to get approval for things. That was self-discipline that grew out of the institution's concern about the abuses that had occurred and the public outcry against it.

So you could be somewhat optimistic and think that we could enlarge our intelligence capacities and not lose that self-discipline. But we are creating the potential for an extension of new authorities into the kinds of surveillance activities that people would disapprove of, that go off the reservation, if you will, away from terrorism. There's a much more sophisticated oversight function in Congress now than there was in the Sixties. In part, it was created as a result of these abuses in the Seventies and that may provide a check--the intelligence committee's insisting on full briefings and disclosures of the use of new authorities, the use of wiretaps, the number of FBI agents surveilling. And at the same time, the people from the ACLU who are concerned about this certainly have a legitimate concern. The big "if" is self-discipline and the capacity of the existing institutions to provide oversight and a check-and-balance function.

What concerns me most about the administration is that they seem to be very strongly opposed to disclosing what they're doing to anybody, including Congress, and that certainly makes life easier if you're in the executive branch and you don't have to go in front of committees and subcommittees and justify yourself. But we shouldn't accept that behavior. We should insist that they do have to disclose what they're doing and be a lot more forthcoming in terms of everything from the names of detainees to regular reporting to Congress on FBI agent activities under this new decentralized regime, where they're going to have a lot more individual autonomy out in the field offices.

The administration had, until recently, been opposed to Senator Lieberman's proposal for a Cabinet agency to oversee homeland security. With the sudden adoption of Lieberman's plan, does Bush's move signal confusion about how to reorganize government or the flexibility characteristic of a good leader?

It wasn't something the Bush administration was initially interested in. I think the president does have the capacity to get on board ideas that seem to be leaving the station, and this one appeared to be gaining momentum in Congress. Whether or not it is now a genuine commitment of the administration or a way to get inside and shape what finally would be the congressional product anyway is an open question. Bush is definitely committed to reorienting government so that it does a better job with homeland security. That is his highest current domestic priority and I think it will continue to be.

The Supreme Court ruled in 1942 that President Roosevelt had the power as commander-in-chief to order "unlawful belligerents" tried before a military tribunal for any violation of the laws of war. Is it constitutionally valid that President Bush decide within the meaning of the Hague Convention--though without judicial review-- who is an "enemy combatant" and therefore who may be subject to trial before military tribunal?

I think there has to be independent judicial review of the threshold question of what your status is. And, really, the fundamental distinction between where we are now and where we've been in past wars is that there was practically no question as to what your status was, and the issue was the legality of the system of military justice once everybody had conceded that you were a belligerent. But the way the current Bush military order is drafted on military tribunals, and the way they have been behaving even when the order doesn't apply, is that they get to decide your status without independent judicial review. I think that's not correct, and I think we'll probably get some habeas corpus petitions fairly soon. The petition is to challenge detention on the basis of someone being wrongly classified. Then the court's going to have to decide whether they have the jurisdiction to hear on that ground, and I hope they will.

"American Taliban" John Walker Lindh went through a conventional legal procedure in the federal courts presumably because he's not an intelligence asset. On the other hand, Jose Padilla, also an American citizen, suspected of having plans to detonate a "dirty bomb," has been detained without charges and denied access to a lawyer. Is that a legally justifiable distinction?

Yes, it is. I think what post-September 11 has brought home is that, in fact, we do have these two quite different systems of justice, both recognized under the Constitution. Whether or not you're subject to the military system is dependent on your relationship to a foreign force of belligerents that are attacking the country in some way. If you are an unlawful combatant under traditional international law and domestic-law principles, you can be tried for the crimes you've committed for violations of war. When those are also crimes against the domestic laws of the country you're in, you could be tried in a civil court as well as a military court. And so, if you accept the proposition that Al Qaeda is at war with us, then we are at war with them, which I think is a sound international-law concept. We're in a situation of armed conflict--all of their combatants are probably unlawful combatants because they're surreptitiously entering the country, not disclosing the fact that they're military, and all of that takes you out of the "prisoner-of-war" lawful-combatant status of the international treaties. And then, you're eligible to go into either one of these systems, citizen or not.

It does have the sort of counter-intuitive result that we end up almost flipping what people's normal expectations were; for instance, [Zacarias] Moussaoui is in federal court, so he's getting all of the protections of the criminal-justice system, access to lawyers, court-appointed representatives, and we've got a citizen like Padilla held essentially incommunicado under the military system and getting very few of the normally expected privileges. As a legal matter, many people they capture they're going to have the discretion to put into one category or the other.

Without a formal "declaration of war," are we technically at war, and do the same laws of war apply to the present situation?

There's a formal legal action called passing a declaration of war, and then there's a word we use to describe the kind of on-the-ground activity that is taking place: armed conflict. And [Bush] is speaking in the second sense. We are at war in the same way we were in Vietnam and Korea. There's no declaration of war, but we're fighting. And the international rules that apply like the Geneva Conventions don't limit themselves to formally declared wars; they apply more broadly to situations of armed conflict, in part to deal with the prospect that if you wanted to avoid the application of these international-law norms, and they only applied when you formally declared war, countries just might go around invading other countries but not announcing that anything is going on.

How does the government reconcile the guarantee of a fair and public trial, as accorded to U.S. citizens for domestic crimes, with the risk of compromising the safety of informants or of intelligence methods and sources vital to protecting the American public?

We do have procedures under a law called CIPA [Classified Information Procedures Act] to handle objections that prosecutors might make to defendants disclosing or threatening to disclose classified information through trial. That act was passed because previously, in spy cases, the defendant could engage in an activity called "gray mail"--threatening to defend himself or herself by putting witnesses on the stand or introducing documents that the government insisted needed to be classified. CIPA sets up a very elaborate set of procedures, the lynchpin of which is essentially that the defendant has to notify the prosecutor--and persuade a judge if a prosecutor objects--that the information he/she wants to disclose is relevant to a defense. Frequently, people talk about how Moussaoui's making known how he was caught or who caught him is going to turn out to be irrelevant to his defense. But if you drew the rules of evidence really carefully, you could legitimately exclude that evidence without jeopardizing his right to a fair trial.

If there's some truly classified thing that is essential to the defense and the government doesn't want to disclose it, then the government has to choose whether to prosecute or to dismiss. And that may be one big reason why you prefer a military trial--because you could close the courtroom and the only people hearing the evidence would be cleared.

The other kind of information is the in-court discussion of what we know about how Al Qaeda operates or the kind of narrative that comes out when somebody gets on the stand. In a public trial, there's really no way to protect against informing your enemies of what you know about them. That's a legitimate concern. I would want to weigh it on a case-by-case basis, because it may be more theoretical than real, but it is a tension, and one that can't actually be solved.

This is the biggest reorganization of government in fifty years. What is the symbolic significance of that for the nation and the administration?

Symbolically, I think it indicates how huge an event September 11 was. Terrorism isn't new, and we've had a number of incidents in the past in which Americans have been killed. And other countries have suffered much greater numbers and, certainly, proportions of casualties than we have. But September 11 really moved that from a routine criminal-justice concern to really public- domestic-international-issue number one, and the reorganization says that.

The Environmental Protection Agency was formed two months before the first Earth Day had been announced, and President Nixon created this brand-new environmental agency. That signaled the beginning of the environmental era. The Homeland Security department signifies the beginning of domestic security being the major concern of the United States.

---interviewed by Patrick Adams


Schroeder is director of the Program in Public Law and co-chair of the Center for the Study of Congress. He has served as acting assistant attorney general in the Office of Legal Counsel at the Department of Justice as well as chief counsel to the Senate Judiciary Committee..