Panel discusses civil liberties in war on terror

If America is truly a country ruled by law, judges may be required to provide the counterbalance to questionable legal decisions made by the Bush administration in the war on terror, a panel of experts said Wednesday.

The group discussion at the 9th Circuit Judicial Conference, meeting in Spokane this week, focused on how the war on terrorism has collided with civil liberties and how judges and lawyers may be called upon to preserve the values that Americans hold dear.

“The executive branch of this government has continually tried to stretch the law or redefine it to nonexistence,” said panelist Anthony Lewis, a columnist for The New York Times. “What I believe is the most dangerous example of bending the law of the Constitution is the claim by President Bush that he can arrest any American citizen suspected of a connection to terrorism and imprison him or her indefinitely without a trial and without access to a trial.”

John Hamre, a former deputy secretary of defense in the Clinton administration, earned the only laughs of the discussion, which was attended by U.S. Supreme Court Associate Justice Sandra Day O’Connor.

“I spent 17 years writing laws to tell the executive branch what to do and then eight years trying to avoid it,” said Hamre, who previously served on the staff of the Senate Armed Services Committee. “There’s no question that 9/11 introduced all of us to what happens to a civil society in times of extreme strain. Power moves inexorably to the executive branch.”

However, neither Hamre nor Lewis had much hope that Congress will solve what both said were abuses of power by the White House.

“This is extraordinarily complicated … coming up as an issue in front of people who really are so preoccupied with just winning the next election,” Hamre said. “I dedicated my life to Congress, and I love it as an institution. But it’s not a strong institution right now.”

Lewis added: “I think we are going to have to rely on the courts to draw the line.”

But the third panelist, Suzanne Spaulding – a former assistant general counsel for the Central Intelligence Agency and former Democratic staff director for the U.S. House Permanent Select Committee on Intelligence – said the solution to the legal issues facing the nation must come from each branch of government.

“I certainly share the frustration about what goes on in Capitol Hill these days. But I think it’s vital that we continue to use all the branches of government to solve these problems,” she said. “Congress is ultimately responsible to us. And as (Defense Secretary Donald) Rumsfeld said, ‘We are going to face this crisis with the Congress we have and not the Congress we want.’ “

Lewis said the United States has infringed on civil rights during times of war throughout its history. He used, as an example, the internment of 100,000 Japanese-Americans during World War II.

“Soon after those earlier events, our country regretted its abuses. We apologized to the Japanese-Americans for their mistreatment and pain,” he said. “But this time, it’s hard to imagine the end to the war on terrorism. Osama bin Laden is not going to board an American war ship, as Japanese leaders did in 1945, and surrender.

“So, if we allow the government to put protocols of necessity above the rule of law, there will be no end to oppression.”

In the 1980s, terrorists wanted to carry out acts of violence not necessarily to kill lots of people, Spaulding said, they wanted the world to take notice of their cause. She then quoted former CIA director James Woolsey, who in the mid-1990s said, “The terrorists of today don’t want a seat at the table. They want to destroy the table and everyone at it,” she said.

The Bush administration has repeatedly argued that the president’s authority as commander in chief during a time of war cannot be challenged either by the courts or Congress, she said.

“Depending on how you define it, this war will likely last through our lifetime and longer,” Spaulding said. “And the question we have to ask ourselves is, what is the implication of having that skewed system in place for an extended period of time? I think it’s important that we have a public discussion and debate about just how far and what authority the president can have during a crisis.”

While the panelists generally agreed that the executive branch legally has gone too far in reacting to Sept. 11, Hamre said the country should consider what would happen if terrorists were able to cause an even worse disaster. He worked with former U.S. Attorney General Janet Reno on an exercise in Cincinnati, Ohio, where officials simulated a nuclear bomb exploding in the city.

“It was truly a frightening experience,” Hamre said. “How do you dispose of 40,000 radioactive corpses in two days? These are the kinds of problems beyond the scale of anything we can contemplate.”

If a terrorist used a biological weapon, the first day would be bad. But the second and third would be progressively worse, he said.

“If we had a traumatizing attack, as we did on 9/11 that caused such a distortion in the balance of power in this country, what would happen if we had one of these events?” he asked. “It wouldn’t be a case of how we protect civil society, it’s how do we restore it?”