Homeland Security and the Rule of Law:
Methodology and Myth
Remarks by Dick Thornburgh, Former
Attorney General of the United States,
to The Dickinson School of Law Chapter
of the Federalist Society at Pennsylvania
State University
Dick Thornburgh
(202) 778-9080
dick.thornburgh@klgates.com
www.klgates.com
The rule of law today is under enormous stress worldwide and is indeed a subject
of considerable concern within our own borders. Threats to this cardinal principle
underlying our democracy deserve our constant attention, lest we fall prey to the threat
of disorder and chaos which afflicts so many areas of our world in this 21st century.
The rule of law is the linchpin in efforts to promote democracy and human rights
around the world and we dare not overlook its significance in the effort to harmonize
differences and promote social and economic growth worldwide as well as in our
United States.
Our world was changed completely by the events of September 11, 2001. On that date,
the ramparts of our fortress America were breached, not by an invading army or by an
alien enemy air armada, but by fanatic terrorists with no regard for innocent human
life, or indeed for their own. Their cowardly attacks that day on New York, Washington
and in the fields of Central Pennsylvania took the lives of some 3,000 innocent persons,
most of them going about their ordinary pursuits on that fateful day. This dreadful
assault on our country has obliged us to rethink many of our basic assumptions about
national defense and homeland security. We are now forced to confront threats totally
unlike those we have had to face in times past. But this nation and our people have
proved equal to the challenges of the past and we have no reason to suspect that we
will be tried and found wanting in responding now.
In devising a strategy for responding to these threats, one of the first considerations
we have had to deal with is the preservation of our own treasured rights and liberties.
Today, the United States continue to stand throughout the world as the prime exemplar
of the rule of law and of a democratic political system. We are the envy of many other
nations and their peoples for characteristics which, frankly, we all too often take for
granted. What we enjoy in our nation is looked on with covetous eyes by many of
the world’s people -- especially those still living under despotic rulers, fearful of the
knock on the door at night, unable to speak out against injustice, mired in poverty and
laboring within backward economies which are often corrupted by their leaders. Worst
of all, too many of the world’s peoples today are denied any means to peaceably effect
necessary changes in their political and governmental systems.
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True, we must take note of the fact that, in times of stress, our constitutional principles
can be severely tested. The effort to balance national security and individual liberty
inevitably produces tension. The late Chief Justice Rehnquist once noted: “in wartime,
reason and history both suggest that [the balance between freedom and order] shifts
to some degree in favor of order -- in favor of the government’s ability to deal with
conditions that threaten the national well-being.”
And sometimes that shift runs to excess. History reminds us of the late 18th century
Alien and Sedition Acts which posed a genuine threat to freedom of speech and
association in the early days of our republic. During the Civil War, even our most
revered president, Abraham Lincoln, it must be remembered, felt obliged to suspend the
ancient writ of habeas corpus, a move many scholars today view as unconstitutional.
Following the end of World War I, the infamous Palmer raids scooped up hundreds
Homeland Security and the Rule of Law:
Methodology and Myth
of aliens in dragnets directed at so-called “radicals.”
And, during World War II, Japanese- American
citizens were taken from their homes and confined
for the duration of hostilities for no reason other
than their ethnic background, surely one of the most
shameful episodes in U.S. history.
So we must always be on the lookout for overreaction
in times of war or national emergency, when law
enforcement or our intelligence agencies may be
tempted to push the envelope of constitutionality too
far in defense of our nation. Care must be exercised
lest they cross the line into violation of our civil
rights and civil liberties.
I.
Today there is, I perceive, a broad consensus in
our nation about the need to fully empower those
to whom we have assigned the task of fighting
terrorism on our shores. Yet, we as a people have a
strong tradition of fearing centralized, secret police
power. This view is reflected in the National Security
Act of 1947 that created the Central Intelligence
Agency but expressly forbade the CIA from having
law enforcement authority. Memories of the Nazi
Gestapo were still very fresh in our minds in 1947.
Even seven years after the tragic events of September
11, 2001, we continue to face the need to develop
new techniques to deal with the threat of terrorist
activities. The American people rightly will not
accept a government that fails to “connect the
dots.” It is unacceptable that one federal agency
with information about, for example, terrorists’
planned use of weapons of mass destruction should
be prevented by law from sharing that information
with another agency that might be lacking that
very piece of the puzzle needed to thwart the
terrorists’ plan.
Important distinctions must be made between
the roles respectively, of law enforcement and
intelligence gathering in the effort to protect our
citizenry and our institutions from the menace
of terrorism.
•Law enforcement seeks legally admissible evidence
to prove a specific criminal offense in court before
a judge and jury;
• Intelligence gatherers, on the other hand, seek
enough information, whether legally admissible or
not, to thwart planned terrorist attacks.
• And these are not the same. One is designed to
punish those who have committed terrorist attacks
after the fact; the other is designed to prevent
terrorist attacks before the fact.
This is one of the principal reasons why cooperation
between the FBI and the CIA or other intelligence
agencies has sometimes been less than ideal in the
past. Grand jury testimony and information obtained
from court-authorized FBI wiretaps often could
not legally be passed on by law enforcement for
use by the intelligence community. By the same
token, intelligence information often could not be
transmitted for use by law enforcement for fear of
compromising the sources and methods by which
it was obtained, i.e., by jeopardizing the lives of
under-cover operatives or cooperating witnesses
or by disclosing highly sophisticated electronic
surveillance techniques in criminal trials held in
open court.
Particularly in the wake of September 11, however,
the American public would be understandably
outraged if told that the information in the files of
one government agency was not being fully shared
with other agencies when the stakes are as high
as they inevitably are in both the prevention and
prosecution of terrorist activities.
So the law was changed. In the fall of 2001, the
Congress by overwhelming margins passed the
USA Patriot Act, which sought to remove some
of the barriers to full cooperation. These changes
may still not prevent some very evil people from
escaping actual prosecution sometime in the future.
Legally admissible evidence may not, in fact be
available to convict them. But the changes will
certainly heighten the prospects of thwarting terrorist
designs and preventing potential widespread harm
and destruction. And I am confident that our criminal
justice process can reconcile the need for enhanced
homeland security and the observance of our basic
constitutional rights and liberties. After all, as United
States Supreme Court Justice Robert Jackson once
observed, “our bill of rights is not a suicide pact.”
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Homeland Security and the Rule of Law:
Methodology and Myth
II.
The task is a formidable one. Particularly since not
all our laws are accessible to the lay person. Take,
for example, Section 104 of the USA PATRIOT Act.
That section states, in its entirety:
Section 2332e of title 18, United States
Code, is amended —
(1) b y striking ‘‘2332c’’ and inserting
‘‘2332a’’; and
(2) by striking ‘‘chemical’’.
Without access to the existing statute, a reader cannot
tell that the old law permitted the Attorney General
to ask the Secretary of Defense for assistance in
the event of a chemical attack whereas the new law
applies to any weapon of mass destruction attack.
The USA PATRIOT does not read like a novel. To
understand it, a reader must have the Act in one
hand and all the laws it amended in the other. With
158 sections in ten titles as diverse as providing
monetary benefits to survivors of terrorist attacks
to changing the statute of limitations for terrorism
related offenses, the Act and its counterparts are
not an easy read and they have given rise to various
myths and misunderstandings. Let me deal with just
a handful.
Myth Number One: Time and again in the media I
hear it said that the Foreign Intelligence Surveillance
Act (FISA) is unconstitutional because it does
not require probable cause and is an attempt to
circumvent the Fourth Amendment itself.
This simply is not true The FISA statute itself
states plainly that before the Court may issue an
order authorizing electronic surveillance, it must
first find – and I quote -- “on the basis of the facts
submitted by the applicant there is probable cause to
believe that—“
• the target of the electronic surveillance is a foreign
power or an agent of a foreign power…;
• and each of the facilities or places at which the
electronic surveillance is directed is being used, or
is about to be used, by a foreign power or an agent
of a foreign power;
Indeed, even the most recent additions to FISA
enacted just this past summer, which extended the
FISA Court’s reach to the targeting for electronic
surveillance purposes of United States persons
outside of the United States require the court to
find that “there is probable cause to believe that
the target is –
• a person reasonably believed to be located outside
the United States; and
• a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power.
The Supreme Court has never reached the issue, but
every Court of Appeals to consider the matter to date
has found FISA’s procedures authorizing electronic
surveillance to be constitutional. The Foreign
Intelligence Surveillance Court of Review examined
FISA after the statute was amended by the USA
PATRIOT Act and concluded in no uncertain terms:
“FISA as amended is constitutional because the
surveillances it authorizes are reasonable.” That is,
after all, what the Fourth Amendment emphatically
requires: “The right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated.”
Myth Number Two: The Military Commissions Act
of 2006 (MCA), passed by Congress and signed into
law by President Bush in 2006 creates a system of
“Kangaroo Courts.” Not so. The Commissions may
be used to try only alien, unlawful combatants. The
MCA requires that an accused be given notice of
the charges and specifications against him and be
permitted to:
• present evidence in his defense;
• c ross-examine the witnesses who testify
against him;
• e xamine and respond to evidence admitted
against him on the issue of guilt or innocence and
for sentencing;
• be present at all sessions of the military commission
(other than those for deliberations or voting),
except when the accused persists in conduct that
endangers the physical safety of individuals or
disrupts the proceedings;
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Homeland Security and the Rule of Law:
Methodology and Myth
• receive the assistance of counsel, both military and
civilian; and
• represent himself, if he so chooses.
Moreover, the MCA explicitly states, “[n]o person
shall be required to testify against himself at a
proceeding of a military commission,” and that
“[a] statement obtained by use of torture shall not
be admissible in a military commission under this
chapter, except against a person accused of torture
as evidence that the statement was made.”
The MCA does not permit the use of secret evidence
that the defendant and his attorneys are not permitted
to see.
All of these provisions are entirely consistent with
the rights granted our own citizens in the federal
district courts. The variances from our civilian
criminal courts found in the MCA are, I submit,
reasonable accommodations to the circumstances
of warfare.
For example, the MCA requires that the traditional
rules of evidence apply “so far as … practicable or
consistent with military or intelligence activities.”
The exception to the traditional rules is that the MCA
permits introduction of hearsay evidence if, but only
if, adequate notice is given to the opposing party
and that party fails to establish “that the evidence
is unreliable or lacking in probative value.” In any
event, no evidence is admissible the “probative
value of which is substantially outweighed …
by the danger of unfair prejudice.” Even in our
civilian criminal courts, hearsay is generally only
excluded if it does not meet any of a long list of
exceptions and if it is presented to a civilian jury.
Federal Rule of Evidence 1101 makes the rules
inapplicable to preliminary questions of fact, grand
jury proceedings and miscellaneous proceedings
such as sentencings, bail hearings, suppression
hearings and similar matters that are normally tried
before judges without a jury. In many instances, it
simply would be impractical or impossible to make
available to testify personally in protracted court
proceedings military or intelligence officers who are
in combat on the other side of the world.
Myth Number Three: The MCA is deficient in
that it does not provide for alien unlawful enemy
combatants to be tried by a jury of their peers.
Although different from the practice in U.S. civilian
courts, this is not unusual in the world at large. The
various international courts such as the International
Court for the Former Yugoslavia or the International
Court for Rwanda also use the commission system,
rather than attempt to locate a lay jury of the
defendant’s peers. Juries are not the norm in those
nations which follow the civil law system, which is
a large part of even the Western Democracies.
Myth Number Four: The military commissions
do not have an exclusionary rule to prevent the
introduction of otherwise reliable evidence “on the
grounds that the evidence was not seized pursuant
to a search warrant or other authorization.” True,
but the exclusionary rule is designed to deter police
misconduct. In the case of military commissions, the
evidence is often gathered by soldiers who cannot be
expected to be trained in evidence collection. Indeed,
U.S. courts are not even authorized to issue search
warrants for places outside of the United States. As
the Supreme Court has stated: “[T]he purpose of
the Fourth Amendment was to protect the people of
the United States against arbitrary action by their
own Government; it was never suggested that the
provision was intended to restrain the actions of
the Federal Government against aliens outside of
the United States territory.” Rather, the standard for
admissibility is this: “Evidence shall be admissible
if the military judge determines that the evidence
would have probative value to a reasonable person.”
This is wholly a truth-seeking standard, without
any trade-offs to serve other societal values such as
deterring police misconduct.
Myth Number Five: The MCA exempts its
proceedings from the speedy trial provisions of
the Uniform Code of Military Justice. True again,
but this, too, makes sense in context. Many of the
unlawful enemy combatants held by the military
were arrested in order to obtain intelligence, and
they are not detained as a result of the pendency of
proceedings before the military commissions. As
Justice O’Connor noted in the Hamdi case: “The
capture and detention of lawful combatants and the
capture, detention, and trial of unlawful combatants,
by ‘universal agreement and practice,’ are ‘important
incident[s] of war,” and the United States may detain
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Homeland Security and the Rule of Law:
Methodology and Myth
such people – separate and apart from trials by
military commissions – “for the duration of the
relevant conflict.”
Myth Number Six: The MCA does not always require
a unanimous vote for conviction. Again true, but it
does require the commission to have at least twelve
members and that they be unanimous as to both guilt
and sentence before imposing a death penalty.
The use of secret military tribunals to try those
charged as unlawful combatants is a procedure first
approved by our Supreme Court in the 1942 Ex Parte
Quirin case involving World War II Nazi saboteurs.
Such tribunals must be available as an option where
sensitive intelligence information might be disclosed
in a trial in open court or where it is deemed wise
to avoid providing a public platform for terrorists to
spew their messages of hatred and extremism. Such
a tribunal might well be appropriate, for example,
for the trial of Osama bin Laden himself if and when
he is finally brought to justice.
Myth Number Seven: Is not a myth at all, but a
shocking reminder of a lingering deficiency in
our system of justice. There is, in fact, no crime
of terrorism triable in our federal criminal courts.
In 1996, Congress passed the Anti-terrorism and
Effective Death Penalty Act – commonly known as
the AEDPA – which added Section 2332b to Title 18,
the Federal criminal code. Subsection (g)(5) states
that “the term ‘Federal crime of terrorism’ means an
offense that … is calculated to influence or affect the
conduct of government by intimidation or coercion,
or to retaliate against government conduct; and …”
is a violation of any one of a list of offenses that
includes such things as destroying aircraft, taking
hostages, and using a weapon of mass destruction.
Presumably, these particular offenses were listed
because Congress believed them to be the sort of
things that terrorists do.
But, what some academics call the “dirty little
secret of Section 2332b” is that Congress did not
impose any penalty for committing such a defined
“federal crime of terrorism.” Nowhere. What the
section actually prohibits is conduct that transcends
national boundaries and is a violation of one of a
wholly separate and substantially shorter list of
offenses contained in subsection (a). Nowhere
in the entire 106 pages of the AEDPA is the term
“federal crime of terrorism” used except in its own
definition! Apparently, having trouble agreeing on a
definition of terrorism, Committee members drafting
the bill adopted the concept of “transcending
national boundaries” as a surrogate for a definition
of terrorism. They altered the “prohibited acts”
portion of the statute so that it referred to “conduct
transcending national boundaries” instead of to a
“federal crime of terrorism,” but no one thought
to remove the now orphaned definition from
the statute.
The only actually crime of “terrorism” as such is
set forth in the Military Commissions Act. Section
950v(b)(24) of the MCA creates an offense named
simply “Terrorism,” which prohibits an unlawful
combatant from intentionally killing or inflicting
great bodily harm upon protected persons if they
do so in a manner calculated to influence or affect
the conduct of a government or civilian population
by intimidation or coercion or to retaliate against
government conduct.
There are at least 14 other definitions of “terrorism”
in the United States Code. Sometimes the law defines
it by the purpose for which an act is committed, such
as to coerce a government. Sometimes Congress
defines it by simply providing a list of offenses that
are deemed to be terrorism-related. And, sometimes
the definition combines both the purpose and a list of
offenses. Still other offenses are generally deemed to
be terrorism because of the conduct involved – such
as using a biological weapon – without any specific
mention of the word “terrorism.” A fifth definitional
approach employs a surrogate concept, such as the
above-noted “transcending national boundaries.”
One statute, Title 18, Section 2332, although in
a chapter entitled “Terrorism” does not use that
word at all, but attempts to limit its otherwise very
broad scope by providing that “No prosecution
for any offense described in this section shall be
undertaken by the United States except on written
certification of the Attorney General or the highest
ranking subordinate of the Attorney General with
responsibility for criminal prosecutions that, in the
judgment of the certifying official, such offense was
intended to coerce, intimidate, or retaliate against a
government or a civilian population.” Apparently,
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Homeland Security and the Rule of Law:
Methodology and Myth
Congress decided it was better to assign the
determination of whether an act constitutes terrorism
to the Attorney General rather than to a judge
and jury.
To be sure, Congress is not alone in finding it
difficult to define “terrorism.” There is no agreed
definition under international law or in academia,
either. Much academic literature defines terrorism
as the unlawful targeting of non-combatants, a
concept generally absent from legal definitions.
And, of course, the parameters of a definition may
vary by the use to which the term is put. Still, the
many, varied, and inconsistent definitions in the
United States Code reflect the lack of a unified legal
theory for identifying just what conduct should
be prohibited.
The AEDPA is itself an example of this reactive
approach. The statute was largely a result of
recommendations from the Department of Justice
based upon its experiences in trying those who
bombed the World Trade Center in 1993 and in
related cases involving al Qaeda members in New
York. The Department found the best available
statute in the early 1990s to be the 19th Century
prohibition on seditious conspiracy. That was the
charge used because at the time the Code lacked
suitable offenses for intervening in a terrorist
scheme before the terrorists actually struck. The
AEDPA added the offenses of providing material
support for terrorism in order that the criminal law
might be brought to bear to deprive terrorists the
resources needed to carry out attacks. We should
remember that the notion of prevention, rather than
prosecution, is properly given priority in the field
of terrorism. As noted, public expectations may
be disappointed in some cases where terrorist acts
are thwarted by effective intelligence gathering
that did not produce legally admissible evidence
that would support a criminal prosecution or when
prosecution is deemed to be unwise because of the
potential exposure of informants or sophisticated
intelligence gathering techniques. The public and
the media must understand that not all bad guys
will be prosecuted, and many of those who are will
be charged with offenses less dramatic than actual
bombings or killings.
III.
The AEDPA is hardly the only example of Congress
taking a somewhat addled approach to defining
criminal offenses. Our federal criminal law has
developed largely as a series of sporadic responses
to widely publicized criminal conduct that either
touched upon a federal interest or provoked an
expression of congressional outrage. It has been
cast in a multitude of fashions that reflects the
idiosyncratic imprint of a two century-long parade
of draftsmen possessing quite different views of
crime, justice, and the English language, but that is
a story for another day.
Suffice to say that while Congress may not have
identified what constitutes the offense of “terrorism,”
it has found time to create over 4,450 separate
crimes, including such supposedly nefarious federal
offenses as:
• using a motor vehicle to capture a wild burro on
public land;
• reproducing the image of “Smokey Bear” without
authorization;
• wearing the uniform of a postman in a theatrical
production that tends to discredit the postal
service;
• taking artificial teeth into a state without approval
of a local dentist;
• using a personal check to pay a debt of less than
one dollar; and
• broadcasting information concerning prizes in a
fishing contest conducted for profit.
It has long been clear that we need a body of law
that is reasonably accessible, permitting both
lawyers and laymen, if so disposed, to locate its core
provisions with the expenditure of only a modest
amount of effort. But that effort has languished
without progress over nearly two centuries.
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Homeland Security and the Rule of Law:
Methodology and Myth
***
We must recognize that some of the actions taken
since 9/11 are controversial. That controversy will
continue. We must work to make sure that the
debate and the dissenters are correctly informed
about just what the various legal reforms do and
do not do. The law will continue to evolve as law
enforcement focuses on a prevention paradigm and
as, one continues to hope, the federal criminal law is
someday truly codified in a rational manner.
When all is said and done, I am confident that
ways will be found to reconcile our liberties with
our national security. The key will be in our longestablished reliance on the principles of democracy
and the rule of law. An observer once noted that
the beauty of our system is not that it is always
right, but that it is usually responsive. And so it is
and, I expect, will continue to be. I am banking on
this principle to help guarantee that we not only
survive the present challenges, but continue to stand
as an exemplar for all those countries which seek
the blessings of liberty and justice and security for
their people.
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