Editor's Note: Even as Uighur detainees, once trained in al Qaeda camps, frolic in the Bermuda surf, enjoying their release from the U.S. detention camp in Guantánamo Bay, newly captured detainees in Afghanistan are being read their Miranda rights, as if they were common criminals. The legal framework under which the U.S. government prosecutes the war on terror remains as unstable and controversial as ever. The speech below, delivered in March 2008 by William J. Haynes II, who was just then stepping down from his position as general counsel at the Pentagon, thus remains highly topical. Rare in this debate, it is also eloquent and highly accessible to the non-specialist. We thus reprint it in full and commend it to our readers' attention.
In September 2005, I was sitting in a window seat on a commercial flight from Madrid to Philadelphia. It was mid-afternoon on a Tuesday. The plane was above the clouds in the sunshine, halfway across the Atlantic.
I was returning from a long trip in Europe. It was typically frenetic--six countries in five days, visit after visit with politicians and businessmen, diplomats and soldiers. I was tired, but marveling at what a great job I had. It's like being the chief legal officer of a medium size country. Any conceivable legal issue conjured up by the Department's more than ten thousand military and civilian lawyers could end up in my lap. I remember my head buzzing with those possibilities as I began to doze.
And then it hit me with
a jolt. I knew this flight. It was the same flight that we had tracked four years earlier on September 11, 2001.
You know the story: Nineteen hijackers on four planes murdered almost three thousand innocent people in an atrocity unlike any in American history. What you may not remember as well is that on that day the Department of Defense tracked two suspicious international flights--one over the Pacific, and this one over the Atlantic--suspecting they, too, were hijacked and heading towards an American skyline. And we steeled and readied ourselves to shoot them down.
All of us remember where we were that day. I was in my office on the phone with my wife, telling her to turn on the TV, when I saw the plane hit the second tower. I raced down to one of the Pentagon command centers with some others, to set up a crisis action cell. As the American Airlines plane hit the other side of our building, I felt only a shudder pulse the monstrous concrete structure. And then it was like I was in a movie playing fast forward. Smoke and confusion, multiple conversations between the President and the Secretary, sending my own deputy off with the Deputy Secretary to a survival site in the event that another plane came at our side of the Pentagon, hearing situation reports about dead and wounded being treated in the Pentagon courtyard.
I spent nineteen hours in the Pentagon that day, mostly at the elbow of then-Secretary of Defense Don Rumsfeld and then-Vice Chairman of the Joint Chiefs, General Dick Myers. Most of the time I was in two Pentagon command centers, reacting and contemplating possibilities I had never expected to face. These scenarios had nothing to do with corporate transactions, environmental cleanups, government contracts, class action litigation, or any of the other issues that had been on my mind when I first took the job, barely four months earlier.
That day, we considered whether to shoot civilian airliners from the sky, and we wondered what would come next. Were there more terrorists on the ground in America's cities? Did they have suitcase nukes? After New York and D.C., were Chicago, Atlanta, or Los Angeles next?
The legal questions were legion. What were the rules of engagement? How do the Fourth and Fifth Amendments apply to a decision to shoot down an American airliner en route to a U.S. city? Should any captured enemies be treated as criminal suspects or enemy combatants?
Smoke lingered in the Pentagon for days. We could not totally extinguish fires because the water itself threatened to shut down the electrical and information systems of the building. But as the smoke dissipated, some things soon became clearer. We were attacked by a non-state organization known as al Qaeda. The President decided that we would fight this enemy with all our national power, including the armed forces. We were at war.
At the time, this was widely accepted. In those weeks following 9/11, both the United Nations and NATO concluded we had suffered an "armed attack," thereby invoking the U.N. Charter and the NATO charter provisions for collective military action. The Congress on September 18, 2001, passed a breathtakingly broad Authorization for the Use of Military Force. The decision to go to war also followed recent precedent; President Clinton had ordered cruise missile strikes against al Qaeda in response to the 1998 bombings of the U.S. Embassies in Kenya and Tanzania.
war had many legal consequences.
It meant we could attack al Qaeda with deadly force. It meant we could detain captured fighters for the duration of hostilities. It meant we could ask questions without reading Miranda warnings. It meant we could seek to intercept their communications to learn their intentions and foil their future plots. It meant we could use military commissions to try them for war crimes.
I was tempted to give a detailed defense for these matters here today. Bob Fiske told me that you all have heard many speakers criticize the government's legal policies and that you'd give me a fair hearing for rebuttal.
But I decided against that. On Monday, I'm leaving this job, after almost seven years. Rather than justify the answers the President and Congress have come up with, I want to look to the future. As the national and global dialogue continues, as you all participate, and as our democracy considers new legal policies, I ask you to consider three questions important to all Americans and maybe particularly important to those of us in the legal profession.
First, how does the law affect the government's ability to fight and win wars?
The obvious approach to this question is to think about the rules we place on the government.
In the aftermath of 9/11, we've seen reforms in this mold. Removing the "wall" between law enforcement and intelligence. Creating the Department of Homeland Security. Creating the Office of the Director of National Intelligence. These legal reforms have been aimed at restructuring the government to be more effective.
I encourage you, however, to consider the law's impact on national security, from other perspectives, beyond just the rules we place on government.
Think about how the law sets incentives and disincentives for others besides the government.
What incentives does the law set for our enemies?
In a way, the threat of al Qaeda makes some applications of the law of war to this conflict unprecedented. On the other hand, the bedrock documents underlying the law of war had this conflict squarely in mind. The Geneva Conventions were consciously written with the purpose of encouraging combatants to follow certain basic rules, to place bounds on an inherently violent and barbaric enterprise--war.
The heart of this effort is to separate fighters from civilians. If the two are separated, civilian populations will be spared killing and destruction. So the law of war requires combatants to distinguish themselves from civilians--usually by wearing a uniform and carrying their weapons openly. In turn, fighters must also refrain from targeting civilians and may not use civilians as human shields.
The law of war attempts to encourage everyone to follow these rules through incentives. People who follow the rules receive a privileged status. Lawful fighters get combat immunity. Although they may kill and be killed on the battlefield, once removed from the fight, they may not be prosecuted for lawfully fighting. Lawful fighters, if captured, also get a special status called prisoner of war. This status comes with many privileges--access to athletic uniforms, musical instruments, access to a canteen where one can purchase tobacco and sundries, the right to whatever military justice system the enemy uses to try its own troops.
Al Qaeda's reason for being, its method of operation, strikes at the core of the law of war. Al Qaeda does not want to be distinguished from the civilians that surround them. The September 11 hijackers did not wear uniforms or carry weapons openly. They posed as businessmen and students. They did not distinguish between combatants and civilians. They attacked civilian aircraft and used those aircraft to attack civilian targets.
Should we afford prisoner of war status to al Qaeda fighters, notwithstanding their conduct? Amplifying that, should they get more than what POWs get? Here, you have to think about the incentives going forward. If you give more protections and privileges to al Qaeda fighters than to lawful fighters, then you will strip away any legal incentives for people to fight according to the rules. Countries and groups will have strategic incentives to enjoy the benefits for clandestine warfare without bearing any of the consequences of doing so. Ultimately, you increase the savagery of future conflicts.
This new series of rights affects the incentives of those on the front line combating terrorist organizations. In fighting, our military personnel may be buying a long series of civilian judicial proceedings, trials, accusations, and the prospect that our opponents will be released before the war is over. These were never prospects that military personnel faced in prior conflicts against conventional enemies. One must ask, what effect will this new web of legal requirements have on battlefield decisionmaking?
And consider this: We have hundreds of habeas cases from persons the United States holds at Guantánamo Bay, Cuba, and I'm concerned about the impact these cases might have on the incentives provided by the law of war.
During World War II, the United States detained more than 400,000 German and Italian prisoners of war in camps sprinkled around the United States, and had zero successful habeas petitions.
Today, we have less than 300 unlawful enemy combatants detained at Guantánamo Bay, Cuba, and 246 ongoing habeas cases in the federal courts to go with them. These cases are in addition to the administrative processes the Executive Branch has developed on its own to review the detention of enemy combatants. And those administrative processes have been endorsed by Congress.
The legal process afforded these detainees far exceeds anything that German or Italian soldiers enjoyed at any time during their captivity within our borders.
Think beyond our naval base in Cuba.
Coalition forces hold tens of thousands of detainees in Iraq and over a thousand Afghanistan. If the detainees in Cuba receive habeas, should those detainees in Iraq and Afghanistan receive it as well? Instead of hundreds, why not tens of thousands of military detainee habeas cases in federal courts?
This is an incentive to violate the law of war. As some have said, what's in it for any foe of the United States to abide by those rules if one gets better treatment upon capture by violating them?
Another example of an area where it's important to consider the incentives the law creates for national security is FISA, the Foreign Intelligence Surveillance Act.
The FISA statute, written in 1978, must be updated to account for remarkable advances in communications technology since then. That is one challenge before Congress now.
But another issue in FISA reform is whether private companies can be sued for cooperating with a Government request for information--for information on suspected al Qaeda operatives. When it comes to private corporations, even the prospect of liability--the very existence of litigation--is enough to cause them to turn the Government down. Allowing private lawsuits to go forward is a consequence of the political branches not making tough policy decisions. They deprive our political process of a real chance to consider what surveillance against our enemies should be permitted. Faced with the prospect of lawsuits, private entities will say "no" in the first instance, and there will be no decision for Congress and the President to make.
The prospect of litigation against individuals--our troops and government officials--also affects the decisions we make. When it comes to foreign lawsuits, the prospect of an adverse reaction--not by our Executive Branch, by our Congress, or by our courts, but by a foreign tribunal or prosecutor, is affecting the decisions military personnel and civilian leaders make.
We've had cases against individual servicemembers in foreign courts.
For example, in April 2003, in Baghdad, a U.S. tank under enemy fire returned fire and killed a Spanish cameraman. More than four years later thousands of miles away, a Spanish judge indicted three U.S. soldiers for violating a Spanish law.
Another case. In March 2005, soldiers at a U.S. checkpoint in Iraq killed an Italian intelligence agent after his speeding vehicle ignored multiple warnings and failed to stop. Almost two years later, an Italian judge indicted a U.S. soldier on homicide charges.
In Great Britain, U.S. Air Force pilots involved in tragic "friendly fire" incidents in Iraq--pilots whose conduct was investigated and cleared by U.S. and UK military investigators--are the subject of multiple county coroner inquests that have accused our pilots of negligent homicide.
Each of these cases proceeds notwithstanding that the U.S. government thoroughly investigated and determined that no administrative or judicial action was warranted.
But litigation isn't just a problem for troops at checkpoints, policy-makers have also been targets.
Lawsuits have been filed against senior military and civilian officials alleging human rights violations. One advocacy group has repeatedly filed complaints with German, Belgian, and French prosecutors requesting that senior civilian and military officials be prosecuted for conduct associated with the defense of our country.
The relationship between law and national security is complicated. It isn't just the rules we place on the government. It's the incentives we set for our enemies and for our own citizens. It's the rules others might try to place on us.
The second question, I'd pose is, 'Can we preserve the American legal system?'
We have a remarkable criminal justice system.
It's an adversarial system. It seeks to restrain government power and to preserve space for individual freedoms, and it's the most solicitous of individual rights of any in the world.
Our criminal law system is remarkable because of how much it is not focused on putting criminals behind bars.
It's a system where it's more important that innocents be found innocent than that the guilty be punished. Therefore, the standard of proof is very high--beyond a reasonable doubt. As Blackstone formulated--"Better that ten guilty persons escape than that one innocent suffer."
It's a system where it's more important to keep the government playing by the rules, than to punish the guilty. We have the exclusionary rule, where, as Judge Cardozo put it, "The criminal is to go free because the constable has blundered."
How would we adapt this gold standard of criminal law to deal with al Qaeda?
Is it better that ten al Qaeda operatives escape, than that one innocent be wrongly detained? Should al Qaeda members go free if the government blunders?
Many might answer, 'Yes!' But remember what only nineteen people were able to do nearly seven years ago. Some believe such doctrinaire logic applied without reflection is unwise. It could, as Justice Robert Jackson once warned, "convert the constitutional Bill of Rights into a suicide pact." Indeed, nearly all who seriously consider the question view criminal prosecution in the federal courts, under rules currently in place as a viable option for only a handful of al Qaeda members.
Adapting our domestic criminal justice system to 9/11-type terrorists could entail a compromise between our long tradition of individual rights and the new public need to thwart mass murder and destruction.
Academics and pundits have proposed such compromises--special terrorism courts. These courts might detain individuals for long periods of time, in spite of reasonable doubts. They might overlook blunders by constables, if those blunders found credible evidence. They might consider secret evidence, ex parte.
Do we want to inject those practices into our domestic legal system?
Consider Justice Jackson's dissent in the World War II case of Korematsu v. United States. There, he argued that the courts should abstain from judging the military's claim that it was necessary to exclude Fred Korematsu from the West Coast on the basis of his race. Justice Jackson thought that judges should not review claims of military necessity, because doing so would import unwanted doctrines into our jurisprudence. Once a practice like racial discrimination is imported and validated by a judge, then it:
lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes.
Justice Jackson went on to contrast the ephemeral nature of military orders with the enduring work of the court.
A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.
Adapting our civilian legal system to cover al Qaeda has its perils. If we choose this path, we must take care that we do not endanger our long-held principles and values.
Once we add special, relaxed procedures in the criminal justice system for al Qaeda, can we keep those procedures confined to the hardest cases? How will we prevent those who follow from using them as convenient ways to bypass the rigors of the criminal justice system?
We must be mindful of these matters as we begin to change the law.
My third question is, 'Can we preserve our adherence to the rule of law?'
Today, the threat of terrorism seems distant to many Americans. Polls show that people are more concerned with the economy and health care than terrorism. And, for many of the military and civilian personnel in government, this is our proudest achievement. By preventing attacks, the government has returned to the people a sense of safety.
But, as we continue to refine the laws, we should not just assume today's sense of security and safety. We should also ask ourselves how people will think, feel, and act when the next attack comes?
And it will come!
We can be sure that when the next attack comes, the American people will rally to the government and demand that it take action to protect the nation.
Writing the laws today, how do we write them so the government has enough flexibility to deal with tomorrow's crises? But what if we err? What if a future President is put in the position where he must choose between following the law and doing what he or she believes is necessary to protect the nation?
This is an awful choice.
The founding fathers recognized this when drafting our constitution. I quote from Madison in Federalist 41.
It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.
We must be careful that the country can act lawfully in self-defense.
I've shared with you some of my perspective on law and national security. In a word, my perspective is conservative. I mean that literally. There is so much in our country worth conserving, worth preserving, worth protecting. The lives of our citizens, the liberties we enjoy, our legal traditions, our belief in government under law.
As enemies threaten us, as the world changes, how do we best preserve all of that?
My first job out of law school was as a clerk to Judge James B. McMillan, in the Western District of North Carolina. I learned a lot from the judge, including: "never attribute to malice that which can be attributed to stupidity"; and "your job as my clerk is to keep me from making unintended errors"; and, "the government has no rights, only responsibilities." While I didn't always agree with the judge, I have always carried his lesson that the awesome powers of the government exist only to fulfill its responsibilities to the people.
Throughout my time as General Counsel of the Department, I've seen the Department's actions not so much as an exercise of lawful executive power or government rights, but as an appropriate discharge of a difficult executive responsibility. The Constitution confers upon the President the ultimate responsibility of ensuring that the American people are safe and secure, especially in wartime, and the Constitution gives the President the power to fulfill that responsibility. Exercising this power is discharging the most basic of all presidential duties.
Of course, the other branches have Constitutional duties as well. And we've seen the dialogue between the Congress, the Courts, and the President on these national security issues. This dialogue is how our constitution is supposed to work.
Without presuming to speak for anyone other than myself, allow me to speculate a bit in closing.
I think history will be kinder to the decisions this administration has made than current accounts might indicate. This country has not--and I knock on wood as I say this--suffered another devastating domestic attack from al Qaeda since 9/11. And most of the stories told thus far have been by outside critics, people who do not know the whole story.
I'm reminded of the late '40s and early '50s. It took those years and new leadership from another party before the country as a whole adopted the containment strategy that ultimately--40 years later--toppled the Soviet Union.
I believe our challenge as citizens now is to find ways to deal with this deadly and likely enduring threat that we can agree to sustain over time and across party lines. Ways that protect the ability of our country to win wars, to protect our systems, and to abide by the law.
How do we manage to live in a long period under threat, when we're fighting people somewhere in between criminals and combatants? When we're in a state somewhere in between war and peace, what will be the balance between security and liberty?
Justice Jackson, speaking in 1951 at the beginning of the Cold War, offered his thoughts on "wartime security and liberty under law." After discussing our Constitutional history, including the arguments between President Lincoln and Chief Justice Taney, Justice Jackson concluded with the following:
The problem of liberty and authority ahead are slight in comparison with those of the 1770s or 1860s. We shall blunder and dispute, and decide and overrule decisions. And the common sense of the American people will preserve us from all extremes which would destroy our heritage.
At first, this seems almost clichéd. "Common sense"? Surely the great expositor of the Steel Seizure case had something more satisfying? But I think what Justice Jackson meant was this. The logic of liberty and the logic of security, if blindly followed, each leads to impractical regimes. Carried to its extreme, the logic of liberty is a suicide pact. Patrick Henry's famous cry. Carried to its extreme, the logic of security is a government which can bend every law with a claim of urgent necessity. A government by fiat, not law.
Between these two extremes, we must chart a middle course. Since ideology and dogmatic logic lead us to crash at either end, then I suppose we must rely on common sense to point the way. As I leave government, as you all take up these challenges, may it guide you as well.
The Honorable William J. Haynes II served as General Counsel of the Department of Defense from May 2001 until February 2008. This speech was delivered as the Lewis Powell Lecture to the American College of Trial Lawyers in Tucson, Arizona, on March 8, 2008.