Interesting Law Professor blog about 911. "Is that Legal?"
_________________________________________
Symposium Blogging IX
I finally have a moment to blog about what was, for me at least, one of the highlights of last Friday's conference: the lunchtime keynote address by Mike Chertoff. Chertoff is now a judge of the US Court of Appeals for the Third Circuit, but back on 9/11/01 (and up until about 3 months ago) he was the Chief of the Justice Department's Criminal Division. This means that he was the guy who oversaw the entire law enforcement response to the 9/11 attacks. I'd venture to say that he is, for that reason, one of the most influential Assistant Attorneys General in the history of the Department.
I should say first off that Chertoff has not yet learned to talk like a judge--by which I mean that he spoke candidly, directly, and revealingly, without retreating behind a screen of concerns about impartiality. His talk sparkled. His answers to questions were honest and responsive.
He devoted the first part of his talk to sketching a view of the task he faced on 9/11 and in the days after. One of the lasting contributions of his talk, I think, was his frank depiction of the relative ignorance in which he and the others at DOJ were forced to operate. Nobody at DOJ had no way of knowing whether the WTC and Pentagon attacks were just the prelude to an even larger disaster. What he did know, though, was this: (a) the enemy had masqueraded as friendly visitors, (b) the enemy had to have had a complicit (or perhaps an innocent) support network--people who'd provided shelter, money, sustenance, and so on, and (c) there was no way to distinguish between the many well-meaning visitors to the USA and the few who meant us harm. "It was not just like looking for a needle in a haystack," he said. "It was like looking in a haystack for a needle disguised as a stalk of hay."
The limited information they had suggested a realistic possibility of further strikes. (And, he pointed out, it still does.)
People who make decisions under this sort of pressure, and in this state of imperfect information, he noted, do not have the benefit of hindsight. They must act.
He said that he is entirely prepared to accept history's judgment of how he acted. And, interestingly, he reported that he and others were "accutely aware" of the eventual judgment of history, even as he was acting in those first few days. But he unapologetically defended most of what DOJ ultimately did.
He said that the early efforts after 9/11 were organized around 3 principles: 1. Enhancing intelligence in order to predict another attack. 2. Taking steps to identify those who might stage such an attack. 3. Disrupting networks from which al Qaeda drew support, even innocently-offered support.
How well, he then wondered aloud, did DOJ do?
Quite well, he said, and, most importantly, far better than earlier Justice Departments did in similar crises. He said that he acted with awareness of the excesses of the past--Lincoln's suspension of habeas, the Palmer Raids, the Japanese American internment--and was confident (and proud) that nothing remotely approaching those excesses happened on his watch.
Toward the end of his talk, he ticked off a list of features that showed the measured nature of the DOJ response: (1) there was, he said, no government suppression of dissent or criticism; (2) the PATRIOT Act, notwithstanding all of the protests against it, did not purport to push law beyond existing 4th Amendment doctrine. Even the much-reviled sneak-and-peak warrants, he asserted, had the endorsement of well-established 4th Amendment precedent; (3) military commissions have not yet been used, do not apply to citizens, and admit of the possibility of limited habeas corpus review (which FDR's WWII commissions didn't); (4) there was no evacuation or detention of citizens or aliens on the unadorned basis of ethnicity; (5) all detentions had a lawful basis; (6) all people detained as enemy combatants were arrested in battle, and there was no detention that approached the magnitude of the detentions during the Civil War.
If Chertoff doubted the legality of any single post-9/11 action, it was the detention as a combatant of an American citizen on US soil. On this issue, he said, questions nag: How is an enemy combatant to be defined? What should the role of judicial review be? How long may detention last?
Chertoff's overall conclusion was that the actions of DOJ after 9/11 reflected a careful awareness of the excesses of history, and a genuine (and successful) attempt to avoid them. (This is quite similar to a point I myself made back in February of 2002, just 5 months after the 9/11 attacks.)
As I said, it was a riveting account. I would have liked to hear a couple of additional things. I would have liked a more personal, dare I say even emotional, account of what it felt like to be making decisions on 9/11/01 and 9/12/01 in this world of horrible security threats and horribly imperfect information. And I also would have liked to hear about a plan or proposal that got floated internally at DOJ in those early days, and that got shot down on the basis that it was too extreme or too much of a repetition of an old, Japanese American internment-style mistake.
I was also disturbed to see that Chertoff's sole source for his account (and seemingly his knowledge) of American national security/civil liberties history is the Chief Justice's quite lame book on the subject. (It's called All The Laws But One.) In a critical review of the Chief Justice's book that I published in the U of Chicago Law Review a few years ago, I worried that in a future crisis, government officials would turn to Rehnquist's book as their source. It looks as though on that score, at least as to Mike Chertoff, I was right. That's a worrisome thing, because the book is the work of an armchair historian, and is a radically incomplete (and one-sided) account of the history.
All in all, though, it was an extraordinarily lucid and powerful presentation.
isthatlegal.org |
