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Why Is This Ball in Our Court? (by Michael Chertoff)

by Michael Chertoff

First published in the Wall Street Journal, June 17, 2004

America's intelligence agencies have been working overtime since Sept. 11, 2001. Presumably, we have much more intelligence now than we did on Sept. 10. But what does the law say we can do when our enhanced intelligence identifies a potential terrorist threat? What is our authority to incapacitate terrorist suspects? Suppose—as is often true—the intelligence is not in a form that can be used in a criminal trial? Does (or should) the law allow detention of the suspect on some other basis? For how long?

Cases presenting novel issues raised by the war on terror are now winding through the courts. While courts set forth constitutional ground rules, however, judges cannot and should not be expected to construct a new legal architecture for the war on terror. This involves weighty matters of policy, and that is the domain of Congress and the Executive. Yet, so far, neither branch has systematically sketched the legal framework for the extraordinary demands of this new kind of war. They seem to hope the courts will come to the rescue.

Congress did pass the Patriot Act, updating some significant legal principles, and enacting critical fixes that law enforcement and intelligence agencies had been seeking for years. These included allowing intelligence gathered by one agency to be shared with another, and extending the rules for phone surveillance to "new" technology cell and Internet-based phones. But such ad hoc approaches do not reflect a settled national vision of what is required to defend against terror, and what we are prepared to sacrifice. Those with various points of view need to sit down, haggle over differences, then write the laws that will balance our new national security needs with America's civil libertarian values.

Some seem to regard intelligence, military, and police activities as having a zero sum relationship with civil liberties. To be sure, one of America's most cherished values, implicit in the Bill of Rights, is that individual liberty must be protected against the power of the state. History is full of persecutions of the harmless, particularly by powerful governments. At the same time, we are fighting for survival against a dangerous enemy. We cannot forget that we are at war, one our enemy declares is a fight to the death. We can win it only if we do not force our forces to fight in a legal fog, constantly speculating and litigating piecemeal about what the law might be. A murky legal climate only obscures our options, and hamstrings our forces.

Worse yet, we have failed so far to form a national consensus. When the political branches come together to hammer out a comprehensive legal mandate, they confront the trade-offs between national security and individual liberty. That process of debate and compromise builds the public support that is indispensable to a long-term strategy for coping with terrorism.

What tasks lie ahead?

Urgently, we need to spell out what the government can do when it discovers through intelligence that a terrorist is in this country. The traditional way to incapacitate dangerous individuals in the U.S. is to apply the criminal justice system. But is that suitable as the exclusive avenue to detain terrorists? Intelligence information, especially foreign intelligence, is highly sensitive—almost always hearsay inadmissible in criminal courts. Indeed, foreign sources routinely pass us intelligence that they not only will never permit to be aired in open court, but advise us they will publicly deny if ever exposed.

Moreover, intelligence information is by definition more broadly gathered, and often less reliable, than the kind of evidence we demand in court proceedings. In war, the soldier must act to kill or capture the enemy based on quite imperfect and fluid information, sometimes just estimates based on intelligence. But this way of using intelligence, critical on the battlefield, does not fit within the contours of our traditional rules for adjudicating criminal charges.

And there is the danger that criminal justice procedures themselves will become tools for the terrorist enemy to turn against us. An article by Andrew McCarthy in the April 2004 Commentary describes his horror when lists of informants obtained from the government in pretrial discovery in the criminal prosecution for the first World Trade Center bombing turned up soon after in a raid of another nest of al Qaeda. Was al Qaeda using it to prepare retribution on pro-American informants, or their families?

There are a host of terrorism-related legal questions that require systematic thought from policymakers. What should our structure be for incapacitating terror suspects at home? The administration has invoked precedents that allow the president to deal with terrorists within our borders as military combatants. Are we fully comfortable, however, using traditional battlefield rules when we apprehend someone in New York? Or should we explore a third way in dealing with detention of terrorists, such as the English or French models: Should we set up specialized courts to deal with terrorist detentions?

What military actions can we take legally within our own borders? When al Qaeda is conspiring globally, does it make sense to divide legal authority between the FBI and CIA based on whether enemy acts occur at home or abroad? Basic policy questions like this cannot be simply left to the judiciary. Our legal architecture for combatting terror and protecting national security has not been seriously examined for decades. We are using the legal building blocks we have at hand, but they need to be rearranged—or new ones cast.

Mr. Chertoff is a judge for the Third Circuit of the U.S. Court of Appeals. This article was first published in the Wall Street Journal, June 17, 2004

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