Brookings: Experts - Stuart S. Taylor, Jr.

Marijuana Legalization: Are There Alternatives to State-Federal Conflict?

Mon, 15 Apr 2013 14:00:00 -0400

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April 15, 2013
2:00 PM - 3:30 PM EDT

Saul/Zilkha Rooms
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

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Last November, two states, Colorado and Washington, voted to legalize and regulate marijuana--a direct challenge to federal policy under the Controlled Substances Act of 1970. Other states may follow suit. Now the Obama administration, the states and Congress face a series of legal and political choices that will determine whether some degree of orderly cooperation is possible. Can confrontation be avoided, or at least minimized? If not, what are the implications?

On April 15, Governance Studies at Brookings and the Washington Office on Latin America hosted a public forum with two leading scholars and two key politicians to examine the options and weigh the stakes.
Video

Stuart S. Taylor, Jr.: There Needs to Be Cooperation Between State and Federal Government
Mark A.R. Kleiman: We Really Don’t Know How “Legalized” Marijuana Would Fit Into Our Society
Bob Ferguson: The State of Washington Wants to Go Forward with Its Policies Regarding Marijuana Use
Rep. Earl Blumenauer: Our Current Marijuana Policy Has Failed

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Uncorrected Transcript (.pdf)

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20130415_marijuana_federalism_transcript

Marijuana Policy and Presidential Leadership: How to Avoid a Federal-State Train Wreck

Stuart S. Taylor, Jr. — Thu, 11 Apr 2013 11:40:00 -0400

Stuart Taylor, Jr. examines how the federal government and the eighteen states (plus the District of Columbia) that have partially legalized medical or recreational marijuana or both since 1996 can be true to their respective laws, and can agree on how to enforce them wisely while avoiding federal-state clashes that would increase confusion and harm communities and consumers.

This paper seeks to persuade even people who think legalization is a bad idea that the best way to serve the federal interest in protecting public health and safety is not for the federal government to seek an end to state legalization. To the contrary, Taylor asserts, a federal crackdown would backfire by producing an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers could neither contain nor force the states to contain.

In this broad-ranging primer on the legal challenges surrounding marijuana legalization, Taylor makes the following points:

The best way to serve the federal interest in protecting public health and safety is for the federal government to stand aside when it comes to legalization at the state-level.

The federal government should nonetheless use its considerable leverage to ensure that state regulators protect the federal government’s interests in minimizing exports across state lines, sales outside the state-regulated system, sales of unduly large quantities, sales of adulterated products, sales to minors, organized crime involvement, and other abuses.

Legalizing states, for their part, must provide adequate funding for their regulators as well as clear rules to show that they will be energetic in protecting federal as well as state interests. If that sort of balance is struck, a win-win can be achieved.

The Obama Administration and legalizing states should take advantage of a provision of the federal Controlled Substances Act (CSA) to hammer out clear, contractual cooperation agreements so that state-regulated marijuana businesses will know what they can and cannot safely do.

The time for presidential leadership on marijuana policy is now. The CSA also gives the administration ample leverage to insist that the legalizing states take care to protect the federal interests noted above.

Stuart also surveys (1) what legalizing states can and cannot do without violating federal law; (2) the Obama’s administration’s approach to medical marijuana and; (3) current marijuana law at the federal level and in Colorado and Washington State.

Download and read the full paper »

Download Appendix 1: The Obama Administration’s Approach to Medical Marijuana: A Study in Chaos »

Download Appendix 2: Conflict of Laws: A Quick Orientation to Marijuana Law at the Federal Level and in Colorado and Washington State »
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Stuart S. Taylor, Jr.

Image Source: © Rick Wilking / Reuters

The Effects of Racial Preferences in Higher Education on Student Outcomes

Fri, 21 Sep 2012 08:45:00 -0400

Event Information

September 21, 2012
8:45 AM - 1:45 PM EDT
Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

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Next month, the U.S. Supreme Court will hear oral arguments in Fisher v. University of Texas, the first case the Court has taken up in a decade on the use of race in higher education admissions. The case has generated ninety-two amicus briefs, one of the highest totals for any Supreme Court case in history. The Court is expected to issue a ruling in the high-stakes case that restricts racial preferences more sharply than its 2003 rulings in Grutter v. Bollinger and Gratz v. Bollinger. As opposed to 2003, many of the arguments in the current affirmative action debate focus not on the competition between races for spots at an elite school, but on whether racial preferences actually benefit their recipients.

On September 21, the Governance Studies program at Brookings hosted a half-day conference examining new research on the actual effects of racial preferences upon students. Do racial preferences help more blacks and Hispanics become scientists and engineers, or do they push students away from STEM majors? Do they tend to increase or decrease minority graduation rates? How do they affect student learning? Did California’s ban on racial preferences in the 1990s change enrollments by black and Hispanic students or affect their grades and graduation rates?

After each panel, participants took audience questions.
Video

Panel 1 - The Effects of Racial Preferences in Higher Education on Student Outcomes
Panel 2 - The Effects of Racial Preferences in Higher Education on Student Outcomes
Panel 3 - The Effects of Racial Preferences in Higher Education on Student Outcomes

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Krishna Robles
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Looking Forward, Not Backward: Refining American Interrogation Law

Stuart S. Taylor, Jr. and Benjamin Wittes — Sun, 10 May 2009 12:00:00 -0400

The following is part of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution

Introduction

The worldwide scandal spurred by the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan and secret CIA prisons during the Bush Administration has been a stain on America’s honor and a catastrophe for our national image. Understandably eager to save innocent lives by breaking the resistance of a few Al Qaeda leaders, Bush and his aides went way overboard. Instead of crafting special rules to allow for exceptionally tough interrogations of those few leaders and maintaining strict limits to ensure that those interrogations stopped short of torture, the Bush team chose to gut the laws, rules and customs restraining coercive interrogations. They did this with a public bravado and an ostentatious disregard for international law that both scandalized world opinion and sent dangerous signals down through the ranks. These signals contributed to lawlessness and to confusion about what the rules were supposed to be. They helped open the floodgates both to CIA excesses widely seen as torture and to brutal treatment by the military of hundreds of small-fry and mistakenly-arrested innocents in Iraq and Afghanistan and of an unknown number of prisoners at Guantánamo. All this inspired widespread international and domestic revulsion and gravely undermined America’s political and moral standing and ability to work with some allied governments.

The policies that led to this scandal were long ago largely abandoned by the Bush Administration itself. Years before President Obama took power, the former president’s lawyers stopped claiming for Bush the power in effect to nullify the federal law that makes torture a crime. While the administration did not concede that highly coercive methods including waterboarding, an infamous form of simulated drowning, are banned under current law, the CIA had discontinued that method after using it to help break three Al Qaeda figures in 2002 and 2003. And Congress adopted new restrictions on interrogation in the Detainee Treatment Act in 2005 and in the Military Commissions Act of 2006. The military, with sharp prods from Congress and the Supreme Court, got out of the coercive interrogation business entirely in 2006.

But Congress, the media, and other critics have continued to focus so intensely on the sins of the past, particularly in light of President Obama’s release of the prior administration’s formal legal opinions on coercive interrogation, as to neglect serious analysis of what is at this stage a far more important question: What rules should govern future interrogations? In particular, what should our government do the next time it captures known terrorist leaders who likely possess information that could save lives yet who are fiercely determined not to divulge that information? Should the law prohibit CIA interrogators from using any coercion at all, as the Democratic-led Congress voted to do in 2008, and thereby reclaim some international good will by disavowing what may prove an important safeguard against terrorist mass murders? If not, then exactly how much coercion should Congress allow, using what interrogation methods, on what kinds of prisoners, and with what high-level approvals and congressional oversight?

The new administration has so far offered answers to these questions that are at once bold and tentative. They are bold in the sense that they represent a virtually complete repudiation of what remained of the Bush Administration’s policies. The prior administration still permitted the CIA to hold detainees in secret sites away from the prying eyes of the International Committee of the Red Cross and subject them to interrogation tactics not authorized by the military and—in some cases—in violation of, or at least in grave tension with, extant law. The Obama Administration, by contrast, has revoked the CIA’s standing detention authority and required that it comply with military interrogation policies, including an instruction not to “threaten or coerce” detainees. It has required ICRC access for all detainees. Whereas Bush spoke proudly and publicly of the “tough” interrogations he authorized, Obama emphasized in his inaugural address that “we reject as false the choice between our safety and our ideals” and stressed in his first address to Congress that “living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.”[i] He also stressed in a press conference this April that he did not regard coercive interrogation as having netted the United States intelligence benefits. “I put an end to these practices,” he said. “I am absolutely convinced that it was the right thing to do, not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.”[ii]

On the other hand, Obama’s new policies are tentative both in the sense that they are non-statutory—accomplished through an executive order, not changes in the law itself—and in the sense that they may prove temporary. While the executive order creates a hard-line anti-coercion default policy for now, it also establishes a task force to study whether the CIA needs more flexibility in interrogation rules for the longer term. And Obama is free secretly to make exceptions to his order if ever a crisis arises in which he, like Bush, may consider coercion necessary.

This essay deals fundamentally with the prospective question of how to amend American interrogation law to balance the need to avoid Bush-like excesses against the need to get intelligence from captured terrorists. It begins by examining some of the deceptions and evasions that frustrate candid discussion of coercive interrogation and torture. It then reviews the post-September 11 evolution of Bush administration policies on interrogation, the experiences of the CIA and the military, and the lessons to be learned from those experiences. It focuses, in particular, on two questions: Has coercive interrogation saved lives that could not have been saved through conventional questioning, either in the post-September 11 context or earlier in history? And is it inevitable that coercive methods, once allowed, will spin out of control? It then turns to a discussion of why, in our judgment, it is essential for Congress and the next president to craft decent, effective, democratically legitimate, internationally respectable interrogation laws for the future; of what those rules should forbid and authorize; and of how to handle exceptionally exigent circumstances that may call for violating the usual rules.

There is no one best legal regime. Each possible approach to these questions has real costs. But America should be able to improve on the legacy of Bush. It should also be able to improve on the approach of human rights groups such as the American Civil Liberties Union, Amnesty International, and Human Rights Watch—and of Congress and the Obama Administration to date. Congress has moved from what-me-worry passivity about coercive practices, to passing in December 2005 a law imposing virtuous-sounding but vague restrictions on interrogators without clear guidance, to voting in 2008 for far more stringent restrictions (a bill which Bush vetoed) without serious discussion of the costs and benefits of any of these approaches. And while the Obama Administration has not embraced such legislation, the executive order the new president signed does effectively the same thing.

We, by contrast, favor a regime characterized by relatively stringent baseline rules but with flexibility built in for the most wrenching, highest-stakes cases. Without a firmer sense than the public record offers of the effectiveness of both mildly- and highly-coercive interrogation techniques, any responsible policy proposal will necessarily be somewhat tentative. And our proposal could shift in a more or less restrictive direction in response to changed understanding of what “works” in interrogation. That said, in our view, it is essential that American interrogation policy be anchored in law. And at least as the record currently stands, that law should have the following contours:

The military should continue to ban all coercive interrogation, and the CIA should avoid it except in extraordinary circumstances, with vigorous congressional oversight to ensure compliance.
The CIA should retain the option of using mildly coercive methods such as threats, isolation, and disrupting sleep patterns—for carefully limited periods of time—on high-value prisoners who defy standard interrogation methods.
Highly coercive interrogation that falls short of torture should be off limits even for the CIA, with an important exception: Congress should reserve to the president and the attorney general the power to authorize the CIA to use highly coercive methods such as sleep deprivation and forced standing on a very small number[iii] of high-value prisoners if and only if the president and attorney general comply with detailed procedures to ensure restraint and accountability.
Torture should remain a crime in all circumstances, and the definition of torture should be tightened to reflect a more commonsense understanding of morally unacceptable coercion. If an emergency so dire should arise that the president or a subordinate feels compelled to cross (or arguably cross) the line into authorizing illegal torture, his only option should be to violate (or arguably violate) the law and chance the consequences.

[i] Barack Obama, Inaugural Address (Washington, DC, January 20, 2009); Barack Obama, Address to Joint Session of Congress (Washington, DC, February 24, 2009).

[ii] Barack Obama, News Conference by the President (The White House, Washington, DC, April 29, 2009).

[iii] CIA Director Michael Hayden has said that since 2001, the agency used “enhanced techniques” on only about one-third of the fewer than 100 suspected Al Qaeda terrorists of whom it has had custody. U.S. Senate Select Committee on Intelligence, Open Hearing: Current and Projected National Security Threats, 110th Cong., 2nd sess., February 5, 2008. The exact numbers, as the subsequent releases made clear were that 94 detainees passed through the CIA’s detention program, of whom 28 were interrogated with any of the enhanced techniques. See Steven G. Bradbury to John A Rizzo, memorandum, “Re: Application of United States Obligations under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value Al Qaeda Detainees,” 30 May 2005, 29 (hereafter “Convention Against Torture” memo).
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Authors

Stuart S. Taylor, Jr.
Benjamin Wittes

Publication: The Brookings Institution, Georgetown University Law Center and the Hoover Institution

Guantanamo Detainees: Is a National Security Court the Answer?

Tue, 17 Mar 2009 10:00:00 -0400

Event Information

March 17, 2009
10:00 AM - 11:30 AM EDT
Saul/Zilkha Rooms
The Brookings Institution
1775 Massachusetts Avenue, NW
Washington, DC 20036

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President Obama’s decision to close the Guantanamo Bay prison camp has left many thorny questions for his administration to resolve.

How many of the 250 detainees—captured by U.S. forces in Afghanistan and elsewhere—can be safely released? How many of the others can be criminally prosecuted? Are human rights groups right to demand the release of those who cannot be prosecuted, no matter how dangerous? Or should Obama continue the Bush policy of detaining as “enemy combatants” those who seem dangerous? If so, should Obama leave the final word on who is an enemy combatant to the federal judges who are reviewing detainees’ cases under a Supreme Court decision that left critical procedural issues unresolved? Or should he ask Congress to adopt new rules and to create a new national security court to administer them?
On March 17, the Brookings Institution hosted a Judicial Issues Forum in partnership with the Progressive Policy Institute to examine these questions. National Journal columnist and Brookings Nonresident Senior Fellow Stuart Taylor moderated a discussion with Harvard Law School’s Jack Goldsmith, National War College’s Harvey Rishikof, American University Washington College of Law’s Stephen I. Vladeck, and Patricia M. Wald, former Chief Judge of the U.S. Court of Appeals for the District of Columbia and former judge of the International Criminal Court for the former Yugoslavia.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum hosts regular events to address the major legal and juridical debates and events of the day and weigh their implications.

At the end of the program, the panelists took audience questions.
Video

Stuart Taylor
Jack Goldsmith
Patricia Wald
Harvey Rishikof
Harvey Rishikof

Audio

Guantanamo Detainees: Is a National Security Court the Answer?

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Transcript (.pdf)

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20090317_guantanamo

Participants
Moderator

Panelists
Jack Goldsmith
Henry L. Shattuck Professor of Law
Harvard Law School

Stephen I. Vladeck
Associate Professor of Law
American University Washington College of Law

Harvey Rishikof
Professor of Law and National Security Studies
National War College

Patricia M. Wald
Former Chief Judge
United States Court of Appeals for the District of Columbia

Preview of the 2008-09 U.S. Supreme Court Term

Mon, 06 Oct 2008 10:00:00 -0400

Event Information

October 6, 2008
10:00 AM - 11:30 AM EDT
Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

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On October 6, when the U.S. Supreme Court‘s 2008-2009 term began, the Brookings Judicial Issues Forum hosted a panel discussion with leading legal scholars and practitioners who offered their insights on the upcoming Court term and discussed some of the biggest cases on the docket. Issues included the constitutionality of a key provision of the Voting Rights Act; the FCC’s ban on broadcasting “dirty words”; and an unusual petition to reconsider the June 25 ruling that the rape of a child cannot by punished by death, in which the justices made a glaring factual error.
Stuart Taylor, Jr., Brookings nonresident senior fellow, moderated the discussion with Thomas Hungar, former deputy solicitor general of the United States, and Alan Morrison, founder of Public Citizen Litigation Group and visiting professor, American University’s Washington College of Law.

The Judicial Issues Forum is a series of public discussions at Brookings on jurisprudence and the role of the courts. The Forum regularly hosts events that address the major legal and juridical debates and events of the day and weigh their potentially far-reaching implications.
Transcript

Transcript (.pdf)

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20081006_supreme_court

Participants
Moderator

Panelists
Alan Morrison
Visiting Professor, American University’s Washington College of Law

Thomas Hungar
Former Deputy Solicitor General

What is the Role of Courts in Making Social Policy?

Stuart S. Taylor, Jr. and Russell Wheeler — Tue, 08 Jul 2008 12:00:00 -0400

Russell Wheeler and Stuart Taylor join Walter E. Dellinger III of O'Melveny & Meyers, Ken Feinberg of The Feinberg Group, Theodore H. Frank of AEI Legal Center for the Public Interest, Mark Geistfeld of New York University School of Law, Gillian Hadfield of the University of Southern California, Lord Leonard Hoffmann of the Appellate Committee of the House of Lords, Philip Howard of Common Good, Robert Joffe of Cravath, Swaine & Moore LLP, Judge Edith H. Jones of the United States Court of Appeals for the Fifth Circuit, Alan Morrison of Fair Elections Legal Network, David Schoenbrod of New York Law School, Peter H. Schuck of Yale University, and Michael Traynor of the American Law Institute to discuss the role of the courts in making social policy.
Opening Statement

Gillian Hadfield, moderator: Welcome to this online forum discussing the role of the courts in making social policy. Over the next three days, we will address such questions as: Is it possible for judges to apply the law in court cases without making or affecting social policy? What is “judicial activism”? To what extent should courts and judges take into account the broader societal effects of the cases they rule on? How have case law judgments affected social policy? Where do we draw the line between decisions that courts should make and those that they should not?

We are all coming to this discussion with different perspectives and opinions, and I look forward to exploring these issues in this discussion. Personally, I have been thinking and writing about these issues lately in two very different perspectives. One is in the context of an active debate among academic lawyers and economists about the relative merits of common law and civil code legal regimes in fostering growth in transition and development economies. Common law is frequently seen as adaptive and flexible, able to respond to changing times and needs while civil code regimes are seen as more rigid and ‘top down.’ But flexibility clearly poses the ‘activism’ question of whether judges are the appropriate adapters of law to changing times. The other perspective I have worked with recently is in relation to the increasing pressure to divert matters out of court with alternative dispute resolution and settlements; I’ve wondered whether this idealized reduced role for courts also means a reduced role for citizen participation in generating the legal standards by which we live, standards that are in large part developed through the concrete ‘activist’ process of adjudicating actual ‘cases and controversies’ and not just legislating.

Let me ask Philip Howard to weigh in to get us started with his views.

Philip Howard: What is the role of the courts in making social policy? It has been a tenet of conservatism that judges should not be "activist." Nominees for the Supreme Court dutifully make statements that the role of judges is only to "apply the law", not to make law. This indictment of "judicial activism" has its roots in courts that decided to take over the school system, as in Kansas City, or manage "consent decrees for decades”, as with special education in New York City (chronicled in sharp detail by Ross Sandler and David Schoenbrod in Democracy by Decree).

But perhaps this indictment of activism is too simplistic. Doesn't it depend on the context? Someone sues the dry cleaners for $54 million for losing a pair of pants–the claim should be dismissed, or bounced to small claims court. Otherwise justice is used for extortion. Someone sues for an accident in the playground–arguing that seesaws are unreasonably dangerous. Just the availability of the claim results in the removal of seesaws around the country. Should a plaintiff have this unilateral power? Or should a judge defend social norms of reasonable risk as a matter of law?

Recent decisions by the Supreme Court and other courts illustrate how over-simplistic the rhetoric of "judicial activism" is. The Supreme Court reduces punitive damages awards in the Exxon case, citing the need for predictability, overturns gun control laws on the basis of the undeniably vague Second Amendment, and gives military detainees habeas corpus rights. The Supreme Court of California says there is a right to gay marriage, and the Supreme Court of Rhode Island says there is no right to sue manufacturers of lead paint.

Perhaps courts inevitably make social policy–that this is inherent in the power they yield. If this is so, then what are the principles by which we sort out how they should exercise this power?

Russell Wheeler: Making policy (and not just social policy) I think is inherent in the nature of the work that common law courts do, but how they do so, and how much they do so, varies with type of court (e.g., the general jurisdiction state trial level court versus most supreme courts) and the type of case (applying fairly settled principles of law—most cases—versus trying to apply a vaguely worded statute) and type of disposition (overseeing a settlement versus deciding one of the blockbuster cases that the US Supreme Court announced last week). We could spend many days sorting out these differences.

Read the full discussion »

Authors

Stuart S. Taylor, Jr.
Russell Wheeler

Publication: NewTalk

Briefing on U.S. Supreme Court Rulings

Fri, 27 Jun 2008 10:00:00 -0400

Event Information

June 27, 2008
10:00 AM - 11:30 AM EDT
Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

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The U.S. Supreme Court debated high-profile cases on gun control, Guantanamo Bay detentions, employment discrimination, the death penalty and other subjects of national controversy during its 2007-2008 term.
On June 27, Brookings Fellow Benjamin Wittes moderated a Judicial Issues Forum that included a panel of distinguished legal experts to assess the key rulings and developments of the term. Panelists included Stuart Taylor, Brookings nonresident senior fellow and National Journal columnist; Miguel Estrada of Gibson, Dunn & Crutcher LLP; and Randolph Moss of WilmerHale.
Video

Supreme Court Overview
Overturning the D.C. Handgun Ban

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Transcript (.pdf)

Event Materials

20080627_supremecourt

Participants
Moderator

Panelists
Miguel A. Estrada
Partner, Washington, DC Office, Gibson, Dunn & Crutcher LLP

Randolph D. Moss
Partner, WilmerHale

Law and the Long War: The Future of Justice in the Age of Terror

Mon, 23 Jun 2008 14:00:00 -0400

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June 23, 2008
2:00 PM - 3:30 PM EDT
Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

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More than six years after the September 11 attacks, America is losing a crucial front in the ongoing war on terror—not to al Qaeda but to its own failure to construct a set of laws that will protect the American people and govern the American side of a conflict unlike any it has faced in the past. Now, in Law and the Long War (Penguin Press, 2008), Benjamin Wittes, Brookings fellow and research director in public law, offers a vigorous analysis of how America came to its current impasse in the debate over liberty, human rights and counterterrorism and draws a road map for how the country and the next president might move forward.
On June 23, Brookings hosted Wittes for a panel discussion of his provocative new book. In Law and the Long War, Wittes argues that the essential problem with the Bush administration’s course was that it did not seek—and Congress did not write—new laws to authorize and regulate the tough presidential actions this war would require. He both argues for more extensive congressional involvement in designing the law of counterterrorism and boldly proposes new bodies of law to govern detention, interrogation, trial and surveillance.

Stuart Taylor, a Brookings nonresident senior fellow and National Journal columnist, moderated the discussion. Jack Goldsmith, former head of the Justice Department’s Office of Legal Counsel, and Seth Waxman, former Solicitor General of the United States, provided commentary on the book.
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Transcript (.pdf)

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20080623_long_war

Participants
Moderator

Panelists

Jack Goldsmith
Henry L. Shattuck Professor of Law, Harvard Law School

Seth Waxman
Partner, WilmerHale

Terrorists and Detainees: Do We Need a New National Security Court?

Fri, 01 Feb 2008 10:00:00 -0500

Event Information

February 1, 2008
10:00 AM - 4:00 PM EST
Room 603
American University Washington College of Law
4801 Massachusetts Avenue, NW
Washington, DC

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In the wake of the 9/11 attacks and the capture of hundreds of suspected al Qaeda and Taliban fighters, we have been engaged in a national debate as to the proper standards and procedures for detaining “enemy combatants” and prosecuting them for war crimes. Dissatisfaction with the procedures established at Guantanamo for detention decisions and trials of detainees for war crimes by military commissions, and concerns about the feasibility of conducting major terrorism trials in regular Article III courts, have led to proposals to establish a special National Security Court.
This new court, which would have greater flexibility to conduct non-public proceedings than do the regular federal courts, could make or review status and detention decisions and/or conduct trials of suspected terrorists. The conference will discuss the pros and cons of establishing such a new federal court, and what jurisdiction should be assigned to such a court.
Participants
Moderator
Kenneth Anderson
Professor, American University Washington College of Law

Panelists
Claudio Grossman
Dean, American University Washington College of Law

Honorable Patricia Wald
Former Chief Judge, U.S. Court of Appeals for the District of Columbia Circuit
Former Judge, International Criminal tribunal for the former Yugoslavia

John B. Bellinger
Legal Adviser to the U.S. Department of State

Honorable Leonie Brinkema
U.S. District Judge, E.D. Va (Judge in the Moussaoui case)

Robert Chesney
Professor, Wake Forest Law School

David Cole
Professor, Georgetown University Law Center

Elisa Massimino
Director, Washington Office, Human Rights First

Matthew Waxman
Professor, Columbia Law School

James Baker
Former Counsel for Intelligence Policy, U.S. Department of Justice

Andrew McCarthy
Director, Center for Law & Counterterrorism

Andrew Patel
private criminal defense lawyer who has represented a number of terrorist suspects, including Jose Padilla

The Politics and Law of Voter ID: Previewing the Supreme Court Arguments in Crawford v. Marion County Election Board

Mon, 07 Jan 2008 14:00:00 -0500

Event Information

January 7, 2008
2:00 PM - 3:30 PM EST
Saul/Zilkha Room
The Brookings Institution
1775 Massachusetts Avenue, NW
Washington, DC 20036

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Questions about identification requirements for voting continue to inspire rancor from both sides of the aisle as policy-makers seek to prevent voter fraud and address concerns that such rules disenfranchise poor and minority voters. At the same time, the U.S. Supreme Court is preparing to hear arguments in two landmark cases on Indiana’s voter ID laws, Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita; the Court’s decision in these cases will have far-reaching effects for the 2008 election and beyond.
On January 7, two days before the Supreme Court arguments, the AEI-Brookings Election Reform Project and the Brookings Judicial Issues Forum hosted a discussion previewing the arguments and exploring the legal issues underlying the cases. Thomas Mann, co-director of the AEI-Brookings Election Reform Project and Brookings senior fellow, moderated the panel. Panelists included Mike Carvin, partner at Jones Day; Wendy Weiser, deputy director of the Democracy Program at the Brennan Center for Justice at the New York University School of Law; and Stuart Taylor, Jr., a nonresident senior fellow at Brookings and a writer for National Journal and Newsweek.
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Transcript (.pdf)

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20080107_voterID

Participants
Moderator

Panelists
Mike Carvin
Partner, Jones Day

Wendy Weiser
Deputy Director, Democracy Program, Brennan Center for Justice, New York University School of Law

Prosecutorial Misconduct and Abuses

Wed, 10 Oct 2007 09:00:00 -0400

Event Information

October 10, 2007
9:00 AM - 10:30 AM EDT
Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

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The Durham County District Attorney's handling of rape allegations against Duke University lacrosse players has Americans questioning their confidence in the American criminal justice system. On October 10, Brookings hosted a discussion on prosecutorial misconduct, examining its frequency at the state and federal levels, the circumstances under which it is most likely to occur and strategies to minimize its impact.
Benjamin Wittes, fellow and research director in public law at Brookings, moderated the discussion. The panel featured Stuart Taylor, Jr., nonresident senior fellow and co-author with KC Johnson of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case (Thomas Dunne Books, 2007); James Comey, former U.S. Deputy Attorney General, and Steven Benjamin, a criminal defense lawyer with the law firm Benjamin & DesPortes.
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Transcript (.pdf)

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20071010misconduct

Participants
Moderator

Panelists
Steven D. Benjamin
Attorney, Benjamin & DesPortes

James B. Comey
General Counsel and Senior Vice President, Lockheed Martin

Remote Control: The Supreme Court's greatest failing

Stuart S. Taylor, Jr. — Thu, 01 Sep 2005 00:00:00 -0400

Permission to reprint granted from The Atlantic Monthly.
I've been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.

That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court's marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that—places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they're not like you and me.

Debates over the Court's "balance"— ideological, ethnic, gender—will doubtless heat up as Congress considers the current vacancy. Yet there is likely to be little discussion about the greatest imbalance—the one in the collective real-world experience of its justices. The Court's steady homogenization by professional background has gone largely unremarked.

Should we be concerned? After all, the Supreme Court is supposed to sit above politics and apart from popular whims. But when a large majority of the Court's justices have never cross-examined a lying cop or a slippery CEO, never faced a jury, never slogged through the swamps of the modern discovery process, something has gone wrong. As the Court has lost touch with the real-world ramifications of its decisions, our judicial system has clearly suffered.

The Court's slow disengagement from practicality was visible by the 1970s, when, for example, in a well-intentioned effort to protect students from unwarranted suspension and tenured public school teachers from arbitrary dismissal, the Court issued a series of decisions requiring hearings before such action. The justices presumably imagined simple, cursory hearings to guard against egregious abuses of power. Predictably, that's not what happened. Hearings quickly became clogged with lawyers, witnesses, trial-type formalities, multiple administrative and judicial appeals, and years of delay. To avoid such ordeals, many principals and administrators have simply stopped trying to remove thuggish students and inept teachers from our schools.

Over time the justices have failed ever more conspicuously to understand what messes their decisions might make. In 1997, while forcing Bill Clinton to give a sworn deposition in the Paula Jones sexual-harassment lawsuit, the Court stunned litigators and trial judges by predicting that this was "highly unlikely to occupy any substantial amount of [President Clinton's] time." Only Justice Stephen Breyer seemed to appreciate that the realities of modern discovery practice "could pose a significant threat to the President's official functions." Sure enough, the district court ordered Clinton to answer detailed, tangential questions about his relations with various women. The rest is history.

In a string of decisions since 2000 the Court has thrown the criminal-justice system into utter confusion by repeatedly changing the rules on the roles of judges and juries in sentencing, while providing minimal guidance on how the new rules should be implemented. In response to the rulings, thousands of current inmates have requested re-sentencing, to the consternation of federal trial and appellate judges, who are all over the lot on how to handle these requests. (The judges also have major differences of opinion on how much weight they should now give sentencing guidelines in new cases.) We'll be hearing more about this confusion—it's a clear recipe for an onslaught of additional appeals down the road, which will further tax our already overburdened criminal-justice system.

Then there's the Court's recent Janus-faced pair of rulings on governmental displays of the Ten Commandments. The gist: recently installed, framed copies must be stripped from courthouse walls; forty-year-old, six-foot-high monuments can stay on the grounds outside. The logic: well, for that you'll have to read ten separate opinions totaling 140 pages. In announcing part of this mess, Chief Justice William Rehnquist said, "I didn't know we had that many people on our Court." Chief Justice John Marshall once observed (in Marbury v. Madison) that "it is the province and duty of the Judicial Department to say what the law is." Government officials and lower-court judges often find the law difficult to ascertain today. But at least they do know—in minute detail—what each justice thinks it ought to be.

As our Supreme Court justices have become remote from the real world, they've also become more reluctant to do real work—especially the sort of quotidian chores done by prior justices to ensure the smooth functioning of the judicial system. The Court's overall productivity—as measured by the number of full, signed decisions—has fallen by almost half since 1985. Clerks draft almost all the opinions and perform almost all the screening that leads to the dismissal without comment of 99 percent of all petitions for review. Many of the cases dismissed are the sort that could be used to wring clear perversities and inefficiencies out of our litigation system—especially out of commercial and personal-injury litigation.

Traditionally the Court decided major questions of federal commercial law, adapting to the changing nature of business and the increasing complexity of litigation. Yet according to Michael Greve, the head of the American Enterprise Institute's Federalism Project, this Court has "resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation." One reason, Greve argues, is that with the exception of Justice Breyer, "the Court has absolutely no idea what business litigation in America now looks like."

What accounts for the Court's drift? There are two factors—one political and one biological. Politically the appointment of Supreme Court justices has become more contentious as it has focused on a small number of polarizing issues—most notably abortion. The ideal candidate today is predictable enough to suit the president and his political base, yet not so predictable as to be an easy target for critics. Appellate-court judges simply fit the bill better than other candidates. Their legal opinions signal ideological leanings (providing more of a track record than would exist for, say, a prominent litigator or a prosecutor). But because they are bound to follow Supreme Court precedents, they ordinarily don't say whether they would overturn those precedents if, as justices, they got the chance. (Elected officials, in contrast, must take specific stands on abortion and other hot issues—all but disqualifying them from consideration for the Court.) Past justices took many roads to the Supreme Court. Today, almost invariably, there appears to be just one.

Moreover, that road is receding further in the rear-view mirror. Longer life spans and justices' increasing reluctance to retire have raised their average tenure from fifteen years before 1970 to twenty-five years since then. Until this summer no justice had retired in eleven years. Real-world experiences gained before their years on the appellate and Supreme courts have become distant memories for today's justices.

Will future appointees bring more diversity of experience? Alas, the political incentives to pick appellate judges seem likely to persist. But one proposed reform—which, after a phase-in, would limit judicial terms to eighteen years, and allow each president to appoint a new justice every two years—would create more opportunities to diversify the Court over time.

The proposal, which is backed by some forty-five leading legal scholars, both liberal and conservative, would (among other benefits) ensure frequent and regular infusions of new blood, and with it more recent experience with the practical aspects of judicial decisions. And because more appointments would lower the political stakes for each one, presidents might be willing to look beyond the usual suspects.

That would be welcome. Quietly our Supreme Court has become a sort of aristocracy—unable or unwilling to clearly see the workings, glitches, and peculiarities of the justice system over which it presides from such great altitude.

Authors

Stuart S. Taylor, Jr.

Publication: The Atlantic Monthly

Filibusters: Two Wrongs Won't Make Things Right

Stuart S. Taylor, Jr. — Sat, 07 May 2005 00:00:00 -0400

Permission to reprint granted from the National Journal.
Like testosterone-crazed teenage drivers locked in a game of chicken, Democrats and Republicans seem on course toward a collision that could do grave damage to our democracy's distinctive blend of majority rule and minority protections.

Before the Senate self-destructs, it may be worth explaining why it has been a big mistake for Democrats to block up-or-down votes on 10 Bush nominees; why it would be an even bigger mistake for Republicans to shun compromise and ram through by party-line vote an unprecedented ban on nominee filibusters; and why both sides are hypocritical to pretend they are driven by principle, not partisanship.

Why the Democrats are wrong.

Senate Democratic Leader Harry Reid and others say that they are standing up for the right to "extended debate" on nominees. Bosh. They are standing up for the right to deny up-or-down votes, forever, to nominees who can't win the 60 votes required by Senate Rule 22 to end a filibuster.

It is also misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as "filibusters" even genuine debates and short-term stalls that ended in cloture votes and confirmation.

The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)

And even the 1968 filibuster of then-Justice Fortas's nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas's request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote.

It's true that Senate Republicans used various other stalling tactics to deny votes to dozens of President Clinton's judicial nominees (as Democrats had done to the first President Bush). It's also true that Republicans used filibusters to block two of Clinton's executive-branch nominees. But, as conservative columnist Charles Krauthammer wrote then, "Republicans have established a terrible precedent. Requiring nominees for high office to get not 50 but 60 votes is a bad way to run the country. Sixty votes should be required for something large."

Democrats' current use of the filibuster — the only nominee-stopping weapon available to the minority party — represents a major escalation of the partisan warfare over judicial appointments that has raged on and off since Fortas. Paeans to the filibuster as a vital barrier against majoritarian tyranny ring hollow when coming from Senate Democrats, 19 of whom (including nine current senators) voted a decade ago to abolish the filibuster. Senate Democrats including Reid, Barbara Boxer, Richard Durbin, Dianne Feinstein, Tom Harkin, Patrick Leahy, and Paul Sarbanes have also called in the past for up-or-down votes on all nominees.

Democrats have good reason to vote against some of the Bush nominees. (See NJ, 4/30/05, p. 1289.) But none is unqualified. And none seems so extreme as to justify use of the filibuster weapon -- especially since the Democrats may well be on their way to losing that weapon forever. Senate Majority Leader Bill Frist seems likely to get the 50 votes he needs (with Vice President Cheney as tiebreaker) to ram through a rule change by parliamentary power play.

Why the Republicans are wrong.

Unwise as the Democrats have been, the threatened Republican response recalls the Vietnam-era adage: "We had to destroy the village in order to save it." Aside from further poisoning the Capitol's partisan atmosphere, Republicans risk an inexorable unraveling of the protections for minority rights that are the Senate's unique contribution to our form of government.

A vote to muscle through a fundamental change in the filibuster rule by a narrow majority would make it blindingly clear that the same could be done to any other rule, at any time, by any 51 senators.

To soothe colleagues' concerns about this slippery slope, Frist stresses that all he means to do is end abuse of the forever-filibuster to deny votes to judicial nominees. But whether it be later this year, next year, or whenever Democrats regain control of the Senate, the temptation to follow the "nuclear" precedent by mowing down other minority protections would eventually become overwhelming.

Perhaps it would be to confirm a controversial executive-branch nominee, such as John Bolton. Perhaps it would be to clear the way for more tax cuts — or tax increases. Whatever the immediate issues, the Senate would drift toward majoritarian autocracy run by iron party discipline, like the House.

And how would Republican moderates — not to mention independents and Democrats — like to see the Supreme Court, along with the House, Senate, and presidency, controlled by the most conservative of Republicans?

As a constitutional matter, the argument by Frist and others for banning nominee filibusters is embarrassingly weak — especially when combined with the assurance that legislative filibusters are fine. The Republican constitutional argument ignores the Fortas precedent. It ignores Frist's own vote in 2000 to sustain a filibuster of a Clinton judicial nominee. It ignores the Republican use of forever-filibusters to defeat Clinton nominees Henry Foster (for surgeon general) in 1995 and Sam Brown (for a diplomatic slot) in 1994. And if it is constitutional to filibuster nominees for the president's team, then the same is surely true of nominees for the independent judiciary.

Hypocrisy aside, the Republican argument that the Constitution requires up-or-down votes on all nominees rests on emanations and penumbras from the Constitution more far-fetched than any of those imagined by liberal activist justices to protect contraception and abortion rights.

Not one word in the Constitution suggests that the Senate's Article I power to "determine the rules of its proceedings" applies any less to confirmation proceedings than to legislative proceedings. And Senate rules have long been used — not least by Senate Republicans during the Clinton years — to stop thousands of nominees, many of whom could have won up-or-down votes, by denying them hearings, burying them in committee, using individual "holds," and employing other tactics of delay.

What should be done.

Imagine for a moment the scene that would be unfolding if the shoe were on the other foot — if Democrats had won the presidency and the Senate and were now trying to put a few crusading liberals on the bench.

Senate Republicans would be filibustering, as they filibustered Fortas and stalled dozens of Clinton nominees. Senate Democrats would be crying foul and demanding up-or-down votes, as they did during the Republican filibusters and other stalling tactics of the Clinton years. Each side would be righteously brandishing the same arguments of principle that it is attacking now.

So this is not about principle. It's about politics. It's the kind of dispute that a healthy democracy resolves not by a destructive fight to the finish but by compromise. The weaker party needs to know when to fold 'em. The stronger party needs to help the weaker negotiate a face-saving surrender. That's how Nikita Khrushchev and President Kennedy averted real nuclear warfare during the Cuban missile crisis. And that's how Democrats and Republicans should avert partisan Armageddon now.

Reid is looking for a face-saving way out. Hence his offer (spurned by Republicans) to end some of the filibusters if Bush will withdraw the most controversial nominees. Perhaps Reid needs to sweeten his offer to pick off wavering Republican moderates.

Frist's proposal to allow up to 100 hours of debate on each controversial judicial nominee before demanding a vote seems reasonable in the abstract, at least for lower-court nominees. Except that Frist knows the Democrats have painted themselves so far into a political corner that to give up the filibuster entirely would be too ignominious a cave-in.

The Democrats' goal should be to live to fight another day — in the far more important Supreme Court succession struggles on the horizon — and retain the option of threatening filibusters should Bush pick provocatively conservative ideological warriors for that Court. The Republicans' goal should be to get most of the confirmation votes they want while preserving their institution and the filibuster rule that defines it.

It is said that the value of a sword of Damocles is not that it falls, but that it hangs. The value of a rule allowing nominee filibusters is not that it should be used, but that it should hang over the process, and serve as a moderating influence on the president.

Authors

Stuart S. Taylor, Jr.

Publication: National Journal

An Agenda for the Nation

Thu, 11 Sep 2003 10:00:00 -0400

Event Information

September 11, 2003
10:00 AM - 11:30 AM EDT
Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue, N.W.
Washington, DC 20036

Register for the Event
In 1968, while the United States was entangled in quagmires both at home and overseas, Brookings first published Agenda for the Nation to prepare policymakers for difficult questions facing the country.
With a new edition of the book just out from the Brookings Institution Press and the 2004 presidential campaign getting underway, a panel of experts will gather—on the second anniversary of an event that had a profound effect on Americans' daily lives and U.S. policy—to examine what lies ahead for the United States. Issues to be discussed include budget and tax policies, the future of military policy and defense budgeting, health care and Medicare reform, security and civil liberties, U.S. foreign policy, and welfare reform.
Panelists at this briefing will answer questions from the audience following their remarks.
Transcript

Transcript (.pdf)

Event Materials

20030911

Participants
Moderator

Panelists
Strobe Talbott
President, The Brookings Institution

Rights, Liberties, and Security: Recalibrating the Balance after September 11

Stuart S. Taylor, Jr. — Wed, 01 Jan 2003 00:00:00 -0500

When dangers increase, liberties shrink. That has been our history, especially in wartime. And today we face dangers without precedent: a mass movement of militant Islamic terrorists who crave martyrdom, hide in shadows, are fanatically bent on slaughtering as many of us as possible and—if they can—using nuclear truck bombs to obliterate New York or Washington or both, without leaving a clue as to the source of the attack.

How can we avert catastrophe and hold down the number of lesser mass murders? Our best hope is to prevent al-Qaida from getting nuclear, biological, or chemical weapons and smuglling them into this country. But we need be unlucky only once to fail in that. Ultimately we can hold down our casualities only by finding and locking up (or killing) as many as possible of the hundreds or thousands of possible al-Qaida terrorists whose strategy is to infiltrate our society and avoid attention until they strike.

The urgency of penetrating secret terrorist cells makes it imperative for Congress—and the nation—to undertake a candid, searching, and systematic reassessment of the civil liberties rules that restrict the government's core investigative and detention powers. Robust national debate and deliberate congressional action should replace what has so far been largely ad hoc presidential improvisation. While the USA-PATRIOT Act—no model of careful deliberation—changed many rules for the better (and some for the worse), it did not touch some others that should be changed.

Carefully crafted new legislation would be good not only for security but also for liberty. Stubborn adherence to the civil liberties status quo would probably damage our most fundamental freedoms far more in the long run than would judicious modifications of rules that are less fundamental. Considered congressional action based on open national debate is more likely to be sensitive to civil liberties and to the Constitution's checks and balances than unilateral expansion of executive power. Courts are more likely to check executive excesses if Congress sets limits for them to enforce. Government agents are more likely to respect civil liberties if freed from rules that create unwarranted obstacles to doing their jobs. And preventing terrorist mass murders is the best way of avoiding a panicky stampede into truly oppressive police statism, in which measures now unthinkable could suddenly become unstoppable.

This is not to advocate truly radical revisions of civil liberties. Nor is it to applaud all the revisions that have already been made, some of which seem unwarranted and even dangerous. But unlike most in-depth commentaries on the liberty-security balance since September 11—which argue (plausibly, on some issues) that we have gone too far in expanding government power—this article contends that in important respects we have not gone far enough. Civil libertarians have underestimated the need for broader investigative powers and exaggerated the dangers to our fundamental liberties. Judicious expansion of the government's powers to find suspected terrorists would be less dangerous to freedom than either risking possibly preventable attacks or resorting to incarceration without due process of law—as the Bush administration has begun to do. We should worry less about being wiretapped or searched or spied upon or interrogated and more about seeing innocent people put behind bars—or about being blown to bits.

Recalibrating the Liberty-Security Balance

The courts, Congress, the president, and the public have from the beginning of this nation's history demarcated the scope of protected rights "by a weighing of competing interests...the public-safety interest and the liberty interest," in the words of Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit. "The safer the nation feels, the more weight judges will be willing to give to the liberty interest."

During the 1960s and 1970s, the weight on the public safety side of the scales seemed relatively modest. The isolated acts of violence by groups like the Weather Underground and Black Panthers—which had largely run their course by the mid-1970s—were a minor threat compared with our enemies today. Suicide bombers were virtually unheard of. By contrast, the threat to civil liberties posed by broad governmental investigative and detention powers and an imperial presidency had been dramatized by Watergate and by disclosures of such ugly abuses of power as FBI Director J. Edgar Hoover's spying on politicians, his wiretapping and harassment of the Rev. Martin Luther King, Jr., and the government's disruption and harassment of antiwar and radical groups.

To curb such abuses, the Supreme Court, Congress, and the Ford and Carter administrations placed tight limits on law enforcement and intelligence agencies. The Court consolidated and in some ways extended the Warren Court's revolutionary restrictions on government powers to search, seize, wiretap, interrogate, and detain suspected criminals (and terrorists). It also barred warrantless wiretaps and searches of domestic radicals. Congress barred warrantless wiretaps and searches of suspected foreign spies and terrorists—a previously untrammeled presidential power—in the 1978 Foreign Intelligence Surveillance Act. And Edward Levi, President Ford's attorney general, clamped down on domestic surveillance by the FBI.

As a result, today many of the investigative powers that government could use to penetrate al-Qaida cells—surveillance, informants, searches, seizures, wiretaps, arrests, interrogations, detentions—are tightly restricted by a web of laws, judicial precedents, and administrative rules. Stalked in our homeland by the deadliest terrorists in history, we are armed with investigative powers calibrated largely for dealing with drug dealers, bank robbers, burglars, and ordinary murderers. We are also stuck in habits of mind that have not yet fully processed how dangerous our world has become or how ill-prepared our legal regime is to meet the new dangers.

Rethinking Government's Powers

Only a handful of the standard law-enforcement investigative techniques have much chance of penetrating and defanging groups like al-Qaida. The four most promising are: infiltrating them through informants and undercover agents; finding them and learning their plans through surveillance, searches, and wiretapping; detaining them before they can launch terrorist attacks; and interrogating those detained. All but the first (infiltration) are now so tightly restricted by Supreme Court precedents (sometimes by mistaken or debatable readings of them), statutes, and administrative rules as to seriously impede terrorism investigators. Careful new legislation could make these powers more flexible and useful while simultaneously setting boundaries to minimize overuse and abuse.

Searches and Surveillance

The Supreme Court's caselaw involving the Fourth Amendment's ban on "unreasonable searches and seizures" does not distinguish clearly between a routine search for stolen goods or marijuana and a preventive search for a bomb or a vial of anthrax. To search a dwelling, obtain a wiretap, or do a thorough search of a car or truck, the government must generally have "probable cause"—often (if incorrectly) interpreted in the more-probable-than-not sense—to believe that the proposed search will uncover evidence of crime. These rules make little sense when the purpose of the search is to prevent mass murder

Federal agents and local police alike need more specific guidance than the Supreme Court can quickly supply. Congress should provide it, in the form of legislation relaxing for terrorism investigations the restrictions on searching, seizing, and wiretapping, including the undue stringency of the burden of proof to obtain a search warrant in a terrorism investigation.

Search and seizure restrictions were the main (if widely unrecognized) cause of the FBI's famous failure to seek a warrant during the weeks before September 11 to search the computer and other possessions of Zacarias Moussaoui, the alleged "20th hijacker." He had been locked up since August 16, technically for overstaying his visa, based on a tip about his strange behavior at a Minnesota flight school. The FBI had ample reason to suspect that Moussaoui—who has since admitted to being a member of al-Qaida—was a dangerous Islamic militant plotting airline terrorism.

Congressional and journalistic investigations of the Moussaoui episode have focused on the intelligence agencies' failure to put together the Moussaoui evidence with other intelligence reports that should have alerted them that a broad plot to hijack airliners might be afoot. Investigators have virtually ignored the undue stringency of the legal restraints on the government's powers to investigate suspected terrorists. Until these are fixed, they will seriously hobble our intelligence agencies no matter how smart they are.

From the time of FDR until 1978, the government could have searched Moussaoui's possessions without judicial permission, by invoking the president's inherent power to collect intelligence about foreign enemies. But the 1978 Foreign Intelligence Security Act (FISA) barred searches of suspected foreign spies and terrorists unless the attorney general could obtain a warrant from a special national security court (the FISA court). The warrant application has to show not only that the target is a foreign terrorist, but also that he is a member of some international terrorist "group."

Coleen Rowley, a lawyer in the FBI's Minneapolis office, argued passionately in a widely publicized letter last May 21 to FBI Director Robert S. Mueller III that the information about Moussaoui satisfied this FISA requirement. Congressional investigators have said the same. FBI headquarters officials have disagreed, because before September 11 no evidence linked Moussaoui to al-Qaida or any other identifiable terrorist group. Unlike their critics, the FBI headquarters officials were privy to any relevant prior decisions by the FISA court, which cloaks its proceedings and decisions in secrecy. In addition, they were understandably gunshy about going forward with a legally shaky warrant application in the wake of the FISA court's excoriation of an FBI supervisor in the fall of 2000 for perceived improprieties in his warrant applications. In any event, even if the FBI had done everything right, it was and is at least debatable whether its information about Moussaoui was enough to support a FISA warrant.

More important for future cases, it is clear that FISA—even as amended by the USA-PATRIOT Act—would not authorize a warrant in any case in which the FBI cannot tie a suspected foreign terrorist to one or more confederates, whether because his confederates have escaped detection or cannot be identified or because the suspect is a lone wolf.

Congress could strengthen the hand of FBI terrorism investigators by amending FISA to include the commonsense presumption that any foreign terrorist who comes to the United States is probably acting for (or at least inspired by) some international terrorist group. Another option would be to lower the burden of proof from "probable cause" to "reasonable suspicion." A third option—which could be extended to domestic as well as international terrorism investigations—would be to authorize a warrantless "preventive" search or wiretap of anyone the government has reasonable grounds to suspect of preparing or helping others prepare for a terrorist attack. To minimize any temptation for government agents to use this new power in pursuit of ordinary criminal suspects, Congress could prohibit the use in any prosecution unrelated to terrorism of any evidence obtained by such a preventive search or wiretap.

The Supreme Court seems likely to uphold any such statute as consistent with the ban on "unreasonable searches and seizures." While the Fourth Amendment says that "no warrants shall issue, but upon probable cause," warrants are not required for many types of searches, are issued for administrative searches of commercial property without probable cause in the traditional sense, and arguably should never be required. Even in the absence of a warrant or probable cause, the justices have upheld searches based on "reasonable suspicion" of criminal activities, including brief "stop-and-frisk" encounters on the streets and car stops. They have also upheld mandatory drug-testing of certain government employees and transportation workers whose work affects the public safety even when there is no particularized suspicion at all. In the latter two cases, the Court suggested that searches designed to prevent harm to the public safety should be easier to justify than searches seeking evidence for criminal cases.

Exaggerated Fear of Big Brother

Proposals to increase the government's wiretapping powers awaken fears of unleashing Orwellian thought police to spy on, harass, blackmail, and smear political dissenters and others. Libertarians point out that most conversations overheard and e-mails intercepted in the war on terrorism will be innocent and that the tappers and buggers will overhear intimacies and embarrassing disclosures that are none of the government's business.

Such concerns argue for taking care to broaden wiretapping and surveillance powers only as much as seems reasonable to prevent terrorist acts. But broader wiretapping authority is not all bad for civil liberties. It is a more accurate and benign method of penetrating terrorist cells than the main alternative, which is planting and recruiting informers—a dangerous, ugly, and unreliable business in which the government is already free to engage without limit. The narrower the government's surveillance powers, the more it will rely on informants.

Moreover, curbing the government's power to collect information through wiretapping is not the only way to protect against misuse of the information. Numerous other safeguards less damaging to the counterterrorism effort—inspectors general, the Justice Department's Office of Professional Responsibility, congressional investigators, a gaggle of liberal and conservative civil liberties groups, and the news media—have become extremely potent. The FBI has very little incentive to waste time and resources on unwarranted snooping.

To keep the specter of Big Brother in perspective, it's worth recalling that the president had unlimited power to wiretap suspected foreign spies and terrorists until 1978 (when FISA was adopted); if this devastated privacy or liberty, hardly anyone noticed. It's also worth noting that despite the government's already-vast power to comb through computerized records of our banking and commercial transactions and much else that we do in the computer age, the vast majority of the people who have seen their privacy or reputations shredded have not been wronged by rogue officials. They have been wronged by media organizations, which do far greater damage to far more people with far less accountability.

Nineteen years ago, in The Rise of the Computer State, David Burnham wrote: "The question looms before us: Can the United States continue to flourish and grow in an age when the physical movements, individual purchases, conversations and meetings of every citizen are constantly under surveillance by private companies and government agencies?" It can. It has. And now that the computer state has risen indeed, the threat of being watched by Big Brother or smeared by the FBI seems a lot smaller than the threat of being blown to bits or poisoned by terrorists.

The Case for Coercive Interrogation

The same Zacarias Moussaoui whose possessions would have been searched but for FISA's undue stringency also epitomizes another problem: the perverse impact of the rules—or what are widely assumed to be the rules—restricting interrogations of suspected terrorists.

"We were prevented from even attempting to question Moussaoui on the day of the attacks when, in theory, he could have possessed further information about other co-conspirators," Coleen Rowley complained in a little-noticed portion of her May 21 letter to Mueller. The reason was that Moussaoui had requested a lawyer. To the FBI that meant that any further interrogation would violate the Fifth Amendment "Miranda rules" laid down by the Supreme Court in 1966 and subsequent cases.

It's not hard to imagine such rules (or such an interpretation) leading to the loss of countless lives. While interrogating Moussaoui on September 11 might not have yielded any useful information, suppose that he had been part of a team planning a second wave of hijackings later in September and that his resistance could have been cracked. Or suppose that the FBI learns tomorrow, from a wiretap, that another al-Qaida team is planning an imminent attack and arrests an occupant of the wiretapped apartment.

We all know the drill. Before asking any questions, FBI agents (and police) must warn the suspect: "You have a right to remain silent." And if the suspect asks for a lawyer, all interrogation must cease until the lawyer arrives (and tells the suspect to keep quiet). This seems impossible to justify when dealing with people suspected of planning mass murder. But it's the law, isn't it?

Actually, it's not the law, though many judges think it is, along with most lawyers, federal agents, police, and cop-show mavens. You do not have a right to remain silent. The most persuasive interpretation of the Constitution and the Supreme Court's precedents is that agents and police are free to interrogate any suspect without Miranda warnings; to spurn requests for a lawyer; to press hard for answers; and—at least in a terrorism investigation—perhaps even to use hours of interrogation, verbal abuse, isolation, blindfolds, polygraph tests, death-penalty threats, and other forms of psychological coercion short of torture or physical brutality. Maybe even truth serum.

The Fifth Amendment self-incrimination clause says only that no person "shall be compelled in any criminal case to be a witness against himself." The clause prohibits forcing a defendant to testify at his trial and also making him a witness against himself indirectly by using compelled pretrial statements. It does not prohibit compelling a suspect to talk. Miranda held only that in determining whether a defendant's statements (and information derived from them) may be used against him at his trial, courts must treat all interrogations of arrested suspects as inherently coercive unless the warnings are given.

Courts typically ignore this distinction because in almost every litigated case the issue is whether a criminal defendant's incriminating statements should be suppressed at his trial; there is no need to focus on whether the constitutional problem is the conduct of the interrogation, or the use at trial of evidence obtained, or both. And as a matter of verbal shorthand, it's a lot easier to say "the police violated Miranda" than to say "the judge would be violating Miranda if he or she were to admit the defendant's statements into evidence at his trial."

But the war against terrorism has suddenly increased the significance of this previously academic question. In terrorism investigations, it will often be more important to get potentially life-saving information from a suspect than to get incriminating statements for use in court.

Fortunately for terrorism investigators, the Supreme Court said in 1990 that "a constitutional violation [of the Fifth Amendment's self-incrimination clause] occurs only at trial." It cited an earlier ruling that the government can obtain court orders compelling reluctant witnesses to talk and can imprison them for contempt of court if they refuse, if it first guarantees them immunity from prosecution on the basis of their statements or any derivative evidence. These decisions support the conclusion that the self-incrimination clause "does not forbid the forcible extraction of information but only the use of information so extracted as evidence in a criminal case," as a federal appeals court ruled in 1992.

Of course, even when the primary reason for questioning a suspected terrorist is prevention, the government could pay a heavy cost for ignoring Miranda and using coercive interrogation techniques, because it would sometimes find it difficult or impossible to prosecute extremely dangerous terrorists. But terrorism investigators may be able to get their evidence and use it too, if the Court—or Congress, which unlike the Court would not have to wait for a proper case to come along—extends a 1984 precedent creating what the justices called a "public safety" exception to Miranda. That decision allowed use at trial of a defendant's incriminating answer to a policeman's demand (before any Miranda warnings) to know where his gun was hidden.

Those facts are not a perfect parallel for most terrorism investigations, because of the immediate nature of the danger (an accomplice might pick up the gun) and the spontaneity of the officer's question. And as Rowley testified, "In order to give timely advice" about what an agent can legally do, "you've got to run to a computer and pull it up, and I think that many people have kind of forgotten that case, and many courts have actually limited it to its facts."

But when the main purpose of the interrogation is to prevent terrorist attacks, the magnitude of the danger argues for a broader public safety exception, as Rowley implied in her letter.

Congress should neither wait for the justices to clarify the law nor assume that they will reach the right conclusions without prodding. It should make the rules as clear as possible as soon as possible. Officials like Rowley need to know that they are free to interrogate suspected terrorists more aggressively than they suppose. While a law expanding the public safety exception to Miranda would be challenged as unconstitutional, it would contradict no existing Supreme Court precedent and—if carefully calibrated to apply only when the immediate purpose is to save lives—would probably be upheld.

Would investigators routinely ignore Miranda and engage in coercive interrogation—perhaps extorting false confessions—if told that the legal restraints are far looser than has been supposed? The risk would not be significantly greater than it is now. Police would still need to comply with Miranda in almost all cases for fear of jeopardizing any prosecution. While that would not be true in terrorism investigations if the public safety exception were broadened, extreme abuses such as beatings and torture would violate the due process clause of the Fifth Amendment (and of the Fourteenth Amendment as well), which has been construed as barring interrogation techniques that "shock the conscience," and is backed up by administrative penalties and the threat of civil lawsuits.

Bringing Preventive Detention inside the Law

Of all the erosions of civil liberties that must be considered after September 11, preventive detention—incarcerating people because of their perceived dangerousness even when they are neither convicted nor charged with any crime—would represent the sharpest departure from centuries of Anglo-American jurisprudence and come closest to police statism.

But the case for some kind of preventive detention has never been as strong. Al-Qaida's capacity to inflict catastrophic carnage dwarfs any previous domestic security threat. Its "sleeper" agents are trained to avoid criminal activities that might arouse suspicion. So the careful ones cannot be arrested on criminal charges until it is too late. And their lust for martyrdom renders criminal punishment ineffective as a deterrent.

Without preventive detention, the Bush administration would apparently have no solid legal basis for holding the two U.S. citizens in military brigs in this country as suspected "enemy combatants"—or for holding the more than 500 noncitizens at Guantanamo Bay. Nor would it have had a solid legal basis for detaining any of the 19 September 11 hijackers if it had suspected them of links to al-Qaida before they struck. Nor could it legally have detained Moussaoui—who was suspected of terrorist intent but was implicated in no provable crime or conspiracy—had he had not overstayed his visa.

What should the government do when it is convinced of a suspect's terrorist intent but lacks admissible evidence of any crime? Or when a criminal trial would blow vital intelligence secrets? Or when ambiguous evidence makes it a tossup whether a suspect is harmless or an al-Qaidan? What should it do with suspects like Jose Padilla, who was arrested in Chicago and is now in military detention because he is suspected of (but not charged with) plotting a radioactive "dirty-bomb" attack on Washington, D.C.? Or with a (hypothetical) Pakistani graduate student in chemistry, otherwise unremarkable, who has downloaded articles about how terrorists might use small planes to start an anthrax epidemic and shown an intense but unexplained interest in crop-dusters?

Only four options exist. Let such suspects go about their business unmonitored until (perhaps) they commit mass murders; assign agents to tail them until (perhaps) they give the agents the slip; bring prosecutions without solid evidence and risk acquittals; and preventive detention. The latter could theoretically include not only incarceration but milder restraints such as house arrest or restriction to certain areas combined with agreement to carry (or to be implanted with) a device enabling the government to track the suspect's movements at all times.

As an alternative to preventive detention, Congress could seek to facilitate prosecutions of suspected "sleepers" by allowing use of now-inadmissible and secret evidence and stretching the already broad concept of criminal conspiracy so far as to make it almost a thought crime. But that would have a harsher effect on innocent terrorism suspects than would preventive detention and could weaken protections for all criminal defendants.

As Alan Dershowitz notes, "[N]o civilized nation confronting serious danger has ever relied exclusively on criminal convictions for past offenses. Every country has introduced, by one means or another, a system of preventive or administrative detention for persons who are thought to be dangerous but who might not be convictable under the conventional criminal law."

The best argument against preventive detention of suspected international terrorists is history's warning that the system will be abused, could expand inexorably—especially in the panic that might follow future attacks—and has such terrifying potential for infecting the entire criminal justice system and undermining our Bill of Rights that we should never start down that road. What is terrorist intent, and how may it be proved? Through a suspect's advocacy of a terrorist group's cause? Association with its members or sympathizers? If preventive detention is okay for people suspected of (but not charged with) terrorist intent, what about people suspected of homicidal intent, or violent proclivities, or dealing drugs?

These are serious concerns. But the dangers of punishing dissident speech, guilt by association, and overuse of preventive detention could be controlled by careful legislation. This would not be the first exception to the general rule against preventive detention. The others have worked fairly well. They include pretrial detention without bail of criminal defendants found to be dangerous, civil commitment of people found dangerous by reason of mental illness, and medical quarantines, a practice that may once again be necessary in the event of bioterrorism. All in all, the danger that a preventive detention regime for suspected terrorists would take us too far down the slippery slope toward police statism is simply not as bad as the danger of letting would-be mass murderers roam the country.

In any event, we already have a preventive detention regime for suspected international terrorists—three regimes, in fact, all created and controlled by the Bush administration without congressional input. First, two U.S. citizens—Jose Padilla, the suspected would-be dirty bomber arrested in Chicago, and Yaser Esam Hamdi, a Louisiana-born Saudi Arabian captured in Afghanistan and taken first to Guantanamo—have been in military brigs in this country for many months without being charged with any crime or allowed to see any lawyer or any judge. The administration claims that it never has to prove anything to anyone. It says that even U.S. citizens arrested in this country—who may have far stronger grounds than battlefield detainees for denying that they are enemy combatants—are entitled to no due process whatever once the government puts that label on them. This argument is virtually unprecedented, wrong as a matter of law, and indefensible as a matter of policy.

Second, Attorney General John Ashcroft rounded up more than 1,100 mostly Muslim noncitizens in the fall of 2001, which involved preventive detention in many cases although they were charged with immigration violations or crimes (mostly minor) or held under the material witness statute. This when-in-doubt-detain approach effectively reversed the presumption of innocence in the hope of disrupting any planned followup attacks. We may never know whether it succeeded in this vital objective. But the legal and moral bases for holding hundreds of apparently harmless detainees, sometimes without access to legal counsel, in conditions of unprecedented secrecy, seemed less and less plausible as weeks and months went by. Worse, the administration treated many (if not most) of the detainees shabbily and some abusively. (By mid-2002, the vast majority had been deported or released.)

Third, the Pentagon has incarcerated hundreds of Arab and other prisoners captured in Afghanistan at Guantanamo, apparently to avoid the jurisdiction of all courts—and has refused to create a fair, credible process for determining which are in fact enemy combatants and which of those are "unlawful."

These three regimes have been implemented with little regard for the law, for the rights of the many (mostly former) detainees who are probably innocent, or for international opinion. It is time for Congress to step in—to authorize a regime of temporary preventive detention for suspected international terrorists, while circumscribing that regime and specifying strong safeguards against abuse.

Civil Liberties for a New Era

It is senseless to adhere to overly broad restrictions imposed by decades-old civil-liberties rules when confronting the threat of unprecedented carnage at the hands of modern terrorists. In the words of Harvard Law School's Laurence H. Tribe, "The old adage that it is better to free 100 guilty men than to imprison one innocent describes a calculus that our Constitution—which is no suicide pact—does not impose on government when the 100 who are freed belong to terrorist cells that slaughter innocent civilians, and may well have access to chemical, biological, or nuclear weapons." The question is not whether we should increase governmental power to meet such dangers. The question is how much.

Authors

Stuart S. Taylor, Jr.