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