The speech below was originally delivered as the Inaugural Daniel O’Connell Lecture sponsored by the Irish Bar Council, Dublin, Ireland, February 8, 2008.
THE SILENCE OF THE LAW IN TIME OF WAR
Thank you, Turlough, for such a warm, generous welcome
It is grand to be back in Ireland.
This is my 19th visit to my family’s homeland. I have visited every County in the North and South and played a few of your finest golf courses—not very well I am afraid.
On the golf course, I have an 18 handicap, but I am scratch in the clubhouse bar.
I am a trial lawyer in Los Angeles and live in Santa Barbara with my wife Dawn and three of our children.
Now Santa Barbara is a dreary place to live.
We are two hours north in Los Angeles on the coast where the air is pure, the mountains glisten, and the sun shines 350 days a year, there is no snow or sleet and the temperature never dips below 50 degrees Fahrenheit.
In contrast to Ireland, you would find it unfamiliar and depressing.
Dawn and I had a chance to meet Turlough and his charming wife last evening for dinner at Browne’s with Paul Sreenan and his wife.
It was an elegant evening and I am grateful for your Chairman being so kind to a poor, distant cousin.
My mother’s family, the Kanes from Kerry, emigrated to America in 1846 during The Famine and settled in upstate New York where they continued to ply their woolen mill trade making uniforms for the Union Army.
On my father’s side, are the proud O’Donnells from Donegal, descendants of Hugh “The Red” O’Donnell.
My wife Dawn is a Donley, also from Donegal.
We are a mixed family: Catholic and Protestant.
But more importantly, we are divided another more meaningful way: I earn the money, and she decides how, when, and where we will spend it.
Now I have fortunately had a measure of success as a trial lawyer for one reason above all else: I moot all my cases with Dawn who is the smartest, most analytical lawyer I have ever faced.
On the pillow at night, she is like a heat seeking missile who finds every weakness in an argument and then puts the pieces back together again in an elegant, persuasive manner.
By the time I get to court, pity the poor adversary who faces a man who has just gone through the equivalent of judicial hell.
Tonight’s speech, like my book “In Time of War,” has been similarly vetted by herself.
Of course, if my remarks meet with favor this evening, I owe it all to Dawn.
Anything discordant or displeasing is naturally my sole responsibility.
That’s how you maintain a successful marriage, isn’t it?
I am pleased to be here among so many distinguished Irish barristers and jurists.
For the son of a liquor store owner and librarian, I am hobnobbing with real lace curtain Irish society
THESIS
I am honored to be invited to inaugurate the Daniel O’Connell Lecture.
As we all know, Daniel O’Connor was an extraordinary barrister, statesman, and civil rights advocate who championed the cause of Irish independence, Catholic Emancipation, and the rights of Jews, tenant farmers, and the poor in a storied lifetime of service to his homeland.
I am truly humbled to be speaking in the penumbra of his glorious career whose achievements, reverence for the law, and commitment to nonviolent political change and justice for the Irish people laid a foundation for the eventual birth of the Irish Republic and a civil Irish society founded on democratic principles.
I will refer more to Daniel O’Connell later.
9/11
On September 11, 2001, life changed irrevocably for all of us.
America was attacked for the first time since Pearl Harbor 60 year earlier—and more lives were lost on that terrible day than “the day that will live in infamy.”
The brazen destruction of the Twin Towers in Manhattan and devastation of the Pentagon was not just a premeditated attack on the United States by Middle Eastern terrorists.
It was an attack on all nations—indeed, it was an attack on civilization itself.
And it was an official declaration of the War on Terror that had been simmering for years in the Middle East, the mountains of Afghanistan, and in small cells of al Quada and other religious extremists around the world who had come to believe their cause justifies mass criminal, genocidal acts.
I have traveled a third of the way around the globe to speak this evening about an aspect of the War on Terror that, in my view, is of monumental importance to our two countries, Ireland and the United States, democratic societies, and the world itself.
This topic has special poignance for us as common law lawyers and jurists who are trained and swear an oath to uphold the Rule of Law.
Certainly, this republic is no stranger to the threat of terrorism and the struggle to maintain democratic institutions.
This evening, I will address the subject of how we as barristers and judges—living in two countries fiercely committed to upholding the Rule of Law—preserve civil liberties while effectively attempting to overcome what Senator John McCain has aptly described as the transcendent threat of our times—radical fundamentalist Islamic terrorism.
What Thomas Friedman has characterized as “World War III—the third greatest totalitarian challenge to open societies in the last 100 years.”
And what we all know is a growing, menacing movement driven by anger and resentment and led by latter-day fascists—religious zealots who in the name of holy Islam seek by force, violence, and intimidation to impose their nihilistic, totalitarian ideology on society.
INSIDIOUS THREAT
We must make no mistake about this new peril and the insidious threat that it poses to our way of life and future.
*These Islamic extremists are contemptuous of human life,
All we have to do is read about the latest outrage where these cruel, cowardly and heartless barbarians send mentally retarded young women into a crowd unknowingly armed with explosives, detonating them remotely, and blowing up the women and killing innocent bystanders.
*These Islamic extremists detest our fundamental values of freedom of conscience, political and religious toleration and pluralism, the plebiscite, and democracy.
*These Islamic extremists regard women as chattel rather than persons and denounce nonbelievers as agents of the Devil.
Already they have achieved one of their objectives: fear stalks our land, and a brooding feeling of anxiety and vulnerability has taken hold of not just Americans, but many other nationalities who have experienced the horrors of this violent menace.
The Spanish, British, Saudis, Indonesians, Israelis and many others.
A DIFFERENT KIND OF WAR
This is a different kind of war and victory will not come merely from military solutions.
There is no defined battlefield
Our enemies wear no uniforms and bear allegiance to no state.
While we seek to confront them thousands of miles from our shores, they move among us, largely undetected and unimpaired—a new, invisible “enemy within.”
They use terror as their weapon of mass destruction and operate outside the law of civilized nations.
This is a war with no defined duration—how will we know when it has ended and prisoners of war can be sent home?
In response to the 9/11 attacks, the United States and some of its allies went to war in Afghanistan against the Taliban and al-Quada militants and their leader Osama bin Laden who were responsible for the attacks.
Simultaneously, the alliance launched a coordinated campaign against international terrorists and other supporters around the globe, seeking to interdict their finances, training and operations.
GUANTANAMO BAY
By January 2002, some 680 foot soldiers captured in Afghanistan and elsewhere were designated by the military as “enemy combatants” and shipped in chains to the U.S. marine base at Guantanamo Bay, Cuba.
Most of them were shopkeepers, farmers, merchants and ordinary tribesmen captured by local war lords and handed over to U.S. military forces for a bounty or in some cases, to settle a family grudge.
Some were boys of 14 and men in their 80s,
None were ranking al Quada leaders.
Quickly, the military determined most were of no intelligence value and most should be sent home.
But they weren’t.
Other prisoners were rounded up elsewhere and held at a chain of extra-constitutional detention centers such as U.S. military facilities in Afghanistan like Bagram and the remote island base of Diego Garcia.
At one point, the U.S. and cooperating countries had arrested over 3,000 alleged al Quada operatives and associates.
For more than seven years, the detainees—still some 350 at Guantanamo—have been held at Guantanamo Bay in small cells, cut off from their families and the outside world and deprived of the rights afforded prisoners of war under the Geneva Convention of 1949 and U.S. military law.
They have been held without counsel, charges or an opportunity to challenge the basis of their imprisonment.
Only three of the remaining 350 detainees have even been charged with crimes, no trials have been completed, and the American government plans to warehouse the vast majority of them indefinitely without trial or any meaningful opportunity to establish their innocence.
PRISONER ABUSE
Released prisoners have plausibly claimed that they were systematically abused by their American captors, including being beaten, subjected to CIA stress and duress techniques such as hooding, blindfolding, forced prolonged standing or kneeling, 24-hour lighting, being shackled in painful positions, deprived of sleep and subjected to continual humiliation.
Some have died, and dozens have attempted suicide to escape open-ended confinement in a six feet by eight feet cell for almost 24 hours a day and constant interrogation—the prey of aimless days and sterile memories.
Several official investigations documented prisoner abuse.
All of these techniques are illegal and a violation of the Geneva Conventions and constitute torture under American and international law.
TORTURE
During this same time period, American military and/or CIA personnel have also engaged in wide-ranging controversial conduct against suspected terrorists that has sparked a firestorm of international protest over alleged human rights violations.
*They captured supposedly high-level al Quada operatives, and using a practice called “extraordinary rendition,” America has cast them into a network of CIA-controlled secret prisons—a Gulag of what have been dubbed “black sites”—in undisclosed locations around the world where they have literally disappeared.
Ireland has been drawn into this controversy because it allegedly allowed the CIA to use Shannon for refueling aircraft carrying al Quada suspects en route to Guantanamo or some secret detention facility.
While the Irish Government has repeatedly denied these allegations and has taken a strong public position against extraordinary rendition, Ireland’s reputation has nonetheless been damaged.
*Beside indefinite detention without trial, prisoner abuse, and extraordinary rendition, American officials have resorted to other practices outlawed by U.S. and international law.
*Some detainees have been reportedly turned over for interrogation by countries that make no pretense of adhering to international humanitarian law.
Some of these prisoners have been subjected to cruel and inhumane treatment that in some cases constitutes torture
*Our CIA personnel have conducted mock burials and threatened to send prisoners to countries with a known track record for even more brutal forms of torture.
WATERBOARDING
*Interrogators have employed torture techniques such as water boarding—a form of torture dating back to the Spanish Inquisition and more recently used by the Khmer Rouge during Pol Pot’s reign of terror in Cambodia.
The victim is strapped to an inclined board with his head at the bottom. A cloth is put over his face, and water is pored over it. The water starts filling the nostrils.
Water boarding simulates drowning and has in fact killed some victims by asphyxiation.
While our new Attorney General Michael Mukasey is not sure if water boarding is legally torture, he recently admitted to Congress that he would consider it torture if it was done to him.
After World War II, the United States prosecuted for war crimes Japanese soldiers who water boarded American prisoners.
And the CIA, which has stopped water boarding, has now admitted that it destroyed videotapes of al Quada terrorists being water boarded during interrogation.
As barristers and judges, we don’t have to speculate how horrible that evidence must have been, do we?
BAGRAM
*At Bagram in Afghanistan and the infamous Abu Ghraib prison following the U.S. invasion of Iraq in March 2003, detainees were regularly abused and some died during interrogations.
One notorious example is an Afghan taxi driver named Dilawar who was picked up by U.S. forces in the desert in 2002 and taken to Bagram prison.
Five days later, he was dead with massive injuries to his legs resembling those he would have sustained if he had been run over by a truck.
ABU GHRAIB
In late 2003, the world witnessed the shocking photos from Abu Ghraib showing abhorrent abuses including isolation, use of dogs, stripping detainees naked, sleep deprivation, smearing female menstrual blood on Muslim men, and subjecting them to stress positions.
These physical and psychological practices—sadistic mistreatment techniques imported from Guantanamo Bay—violated the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, and the U.S. Detainee Treatment Act that bans conscience shocking conduct.
Torture is defined as the deliberate infliction of extreme pain and suffering, physical or mental.
Interrogation employing water boarding and a mock execution is universally considered to be an abhorrent form of torture.
Torture is not limited—as one Bush administration lawyer obtusely opined, to the infliction of pain equivalent to a major organ loss.
Among international human rights lawyers and every impartial jurist who has examined the issue, the practices of the American government in its treatment of detainees and suspected al Quada members violates every international human rights treaty.
Bagram, Abu Grhaib, Guantanamo have become places that will live in
infamy when the definitive history of these times is written.
THE CASE OF THE ALGERIANS
For a few minutes, I want to humanize this issue.
While there are tragically many examples, I want to tell you about the case of Lakhdar Boumediene and five others who are Algerian, emigrated to Bosnia during the 1990s where they were legal residents, and were arrested by the Bosnian police in October 2001 on suspicion of plotting to attack the American embassy in Sarajevo.
Three months later, the Supreme Court of Bosnia and Herzegovina ordered them released for lack of evidence.
The Bosnian police immediately seized them and turned them over to the U.S. military which transported them to Guantanamo.
This is an outrage.
But the outrage is compounded by the fact that these six citizens of a foreign country have never been charged with a crime, never had a trial, and are now being told by my Government that they have no right to establish their innocence.
As I will discuss later, their challenge to their confinement is awaiting a decision from the U.S. Supreme Court.
Sadly, this case is not an aberration.
For the over 700 Guantanamo detainees and countless others who have disappeared into the invisible American prisons, they share a common fate: harsh treatment, torture, limited or no access to lawyers, no contact with family, and a depressing realization that they may never be freed.
They have been cast into a legal twilight zone.
HOW DID AMERICA BECOME A ROGUE NATION
How has my beloved America—once the celebrated champion of human rights and the leading proponent of the Geneva Conventions of 1949 following the atrocities against POWs and civilians in World War II—become an international law outlier?
Why have we stooped to conquer?
How has this horrible state of affairs that has so badly tarnished American’s reputation happened?
The answer is simple: President George W. Bush.
Within a few months of the 9/11 attacks, President Bush, without the approval of Congress, issued an Executive Order establishing special military commissions for all enemy combatants.
These tribunals—dubbed by a chorus critics as “kangaroo courts”—do not adhere to the requirements of international law and do not afford the legal safeguards of the Uniform Code of Military Justice governing courts martials
As you can see on page 311 of “In Time of War,” these military commissions’ procedures offer almost none of the fairness protections that a defendant would be afforded in a U.S. criminal court of a U.S. court-martial.
The detainee has no right to counsel of his choice, to know all the
evidence against him, to obtain all evidence in his favor, to confidentiality of attorney-client communications, to a speedy trial, or to an appeal to an independent court.
These military commissions and indefinite detention have been condemned by lawyers and jurists around the globe.
One of the most trenchant rebukes came from one of Britain’s most senior judges and a longtime admirer of American democracy and ideals of justice.
In November 2003, Lord Johan Steyn, one of twelve judges serving on the equivalent of Great Britain’s Supreme Court, condemned Guantanamo as “a monstrous failure of justice . . . detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole . . . .”
Lord Steyn admonished the U.S. for “the utter lawlessness” of secret military trials where “the military will act as interrogators, prosecutors, defense counsel, judges, and . . . as executioners.”
The sole purpose for detaining these suspects in Guantanamo “was and is to put them beyond the rule of law, beyond the protection of any courts, and at the mercy of the victors.”
These are “the type of trials one associates with utterly lawless totalitarian regimes” and “a stain on United States justice.”
Mincing no words, Lord Steyn found that “the United States government is in breach of the minimum standards of customary international law.”
Lord Steyn also pointed to the root of the problem:
A nation with “a long and honourable commitment to Magna Carta and allegiance to the rule of law” has become hostage to the recent trend of “extraordinary deference of the United States courts to the executive [that] has undermined those values and principles.”
The Bush-Cheney presidency justified its disregard for international law—and even the U.S. Constitution with the infamous indefinite detention of U.S. citizens like Jose Padilla and Yaser Esam Hamdi—by claiming that the War on Terror was not like previous conventional wars.
President Bush, aided and abetted by Vice President Dick Cheney, purposefully fashioned a war presidency that sought unchallenged power and rejected Congressional and bipartisan support
President Bush—acting on the advice of his then White House counsel Alberto Gonzales and Attorney General John Ashcroft—declared that “the war against terrorism ushers in a new paradigm [that] requires new thinking in the law of war.”
This self-declared distinction justified, the President concluded, not adhering to the letter of the Third Geneva Convention, particularly the minimum legal requirements for treatment of combatants captured on the battlefield.
Among other things, Article 5 requires a speedy determination of a combatant’s status at hearing convened by a competent tribunal—a protection denied to all Guantanamo detainees.
As for torturing detainees, the President said that the U.S. would honor “the spirit” of the Geneva Convention but any rights they may enjoy flow from “executive grace” and not U.S. or international law.
President Bush and his lawyers also defiantly maintained that his decrees were unreviewable by U.S. or any other courts.
In the new documentary “Taxi To the Dark Side” about the death of the Afghan taxi driver at Bagram and the role of torture in the War on Terror from Abu Ghraib to Guantanamo, we are presented with a picture of the dark side of this American presidency.
It is a profoundly disturbing mosaic characterized by a lack of respect for humanity, respect for international laws, accountability and transparency.
At the end of this provocative documentary, the director features a comment from his late father who had been a World War II Navy interrogator:
“We should be different than them.”
Sadly, in the ironic words of then U.S. Secretary of Defense Donald Rumsfeld speaking about forthcoming investigations of alleged torture of prisoners:
“The world will see how a free system, a democratic system, functions and operates.”
Well, we have seen and we are appalled.
WHY DO WE CARE?
By now you might be saying to yourself: okay, we know that bad things were and continue to be done to bad people in the name of liberty, but that is the way the world operates.
We need to torture suspects for intelligence information, and it sends a message to the terrorists that they will be dealt with harshly.
And, in any event, why should we get so exercised about their civil liberties when they don’t have the slightest respect for the human rights of victims of their ruthless terrorism?
That is a legitimate question.
THE RULE OF LAW
The best answer comes from a fellow barrister—Lord Peter Goldsmith, attorney general for Great Britain in 2004, who stated:
“It is a bitter pill to swallow for those who have seen and
experienced the devastation that results from terrorist outrages to
see systems established to protect the legal rights of those who they
believe responsible for them. And those who are responsible, let it
be admitted, do not have a single shred of concern for the legal or
human rights of those they would kill, maim and terrorize. So why
should we care, some would say, about theirs? The answer to this is
that the rule of law is the heart of our democratic systems.”
OTHER REASONS
There are other compelling reasons why America should respect international law regarding the treatment of POWs.
The U.S. military establishment has come out strongly against the Bush Administration’s lawless behavior.
The US. Defense Department has rejected abusive practices such as water boarding, stress positions, and sleep deprivation as *illegal, *immoral, *ineffective, and *damaging to America’s global standing and safety of our own military personnel overseas.
Retired generals and former heads of each military service’s Judge Advocate Generals offices have repeatedly advocated strict adherence to the various conventions and have filed amicus curiae briefs in the Supreme Court in several detainee cases.
WESLEY CLARK
For example, retired four star General Wesley Clark, former Supreme Commander of NATO, has pressed for closing Guantanamo. Last summer, he stated:
“[Like we did with Japanese Americans during World War II,] we’ve
interned some people in Guantanamo who had nothing to do with
terrorism.”
“It would be a very good thing to get the Guantanamo monkey off
the back of the United States. I’d like to see it turned over to
an international organization . . . to process those people in
accordance with international law and international standards,
get the ones that aren’t terrorists home, the ones that are terrorists,
get them prosecuted, lay the evidence out [for the world to see] and
take it off the backs of the United States and especially off the
United States armed forces.”
The military leadership takes both a legal and practical approach.
It is the correct conclusion under international law.
The community of nations developed the conventions as the distillation of a broad consensus on what is morally acceptable behavior in time of war.
Thus, when we balance the utility of using torture for interrogation vs. the cost, we must also weigh in the scales the cost of “what we think is appropriate and inappropriate behavior in a civilized society” (Senator Joseph Biden).
Torture must be defined as what is done to the victim, not by the usefulness or intelligence value of the information obtained.
Torture—“extreme interrogation techniques” to use the euphemism—must never be legal.
Pragmatically, information extracted from a tortured suspect is of dubious value, and tidbits of intelligence from low-level foot soldiers apprehended seven years ago is virtually worthless.
There is, however, a pragmatic reason why we insist on full compliance: so that we may demand the same for our soldiers when captured.
As for sending a message to terrorists, Guantanamo Bay, along with America’s invasion and occupation of Iraq, has become a rallying cry for recruiting a whole new generation of Islamic terrorists.
The Bush Administration’s war on the rule of law has created a public relations nightmare for America abroad.
Tim Rutten, writing on February 2nd in the Los Angeles Times (p. A21):
“We have suffered terrible casualties in the war with the Islamic terrorists, but the only real victory they’ve achieved was the one the Bush Administration handed them when it replaced law with vengeance and sanctioned torture.”
Again, as General Clark has observed: it is time to stop mistreating detainees “because the impression that the United States is abusing people is undercutting America’s ability to win the war against Islamic terrorists.”
Another piece of collateral damage is the new image of America as a rogue nation trampling on human rights.
Therefore, it comes as no surprise that it is increasingly difficult for the United States to protest human rights violations in other parts of the world when America is widely viewed as a hypocrite with two standards on human rights: one for itself and one for everyone else.
We are rightly judged by our actions, not our rhetoric.
COLIN POWELL
Then U.S. Secretary of State Colin Powell, a distinguished former Army general and Chairman of the Joint Chiefs of Staff in the Clinton Administration, waged a lonely—and losing—battle in the Bush cabinet against Guantanamo and in favor of strict adherence to international law.
As a private citizen, he continues to advocate its immediate closure.
Last year, he stated:
“Essentially, we have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open and creating things like a military commission.”
As for detainees having the right to habeas corpus and getting their own lawyers, he asked: “Isn’t that what our system is all about.”
JOHN MC CAIN
U.S Senator John McCain, the current frontrunner for the Republican presidential nomination, was a Navy prisoner of war and tortured for six years during the Vietnam War.
When John McCain speaks about torture and international law, we must listen.
In defending a measure that would outlaw U.S. officials from inflicting “cruel, inhuman, and degrading treatment on detainees in the War on Terror, Senator McCain incisively stated in 2005:
“It is not about who they are, it’s about who we are.”
McCain, a genuine war hero and political conservative, has been a vigorous champion of America respecting international humanitarian and has campaigned for President on a platform calling for closure of Guantanamo Bay.
McCain says that even if we do not believe that humane treatment of
detainees is the morally and legally correct course of conduct, it is in America’s self-interest.
“It is critical to realize that the Red Cross and the Geneva
Conventions do not end endanger American soldiers, they
protect them. Our soldiers enter battle with the knowledge
that should they be taken prisoner, there are laws intended to
protect them and impartial international observers to inquire
after them.”
McCain and countless other military leaders rightly repudiate the reverse Golden Rule that has been advanced as a justification for torture and jettisoning international humanitarian and U.S. law banning such practices.
After all, the defenders say, al Quada does far worse than water boarding any Americans that they capture.
So, why should we obey the rules when the enemy routinely flouts them?
For me—as a barrister, an American whose father helped liberate Europe in World War II, and as a citizen of the larger world, the answer is simple:
Calibrating our moral compass by the logic of reciprocity is a morally and pragmatically misguided notion and exceptionally short sighted
The entire system of international humanitarian law and American statutes and the Army Field Manual on treatment of prisoners—making clear what behavior is lawful and what constitutes war crimes—represents a consensus on humane treatment of prisoners of war that has evolved over centuries.
As the Los Angeles Times recently noted in an editorial urging passage of the Intelligence Authorization Act requiring the intelligence agencies to abide by the no torture interrogation rules of the Army Field Manual and an end to the degradation of American decency:
:Al Quada is not necessarily “the last enemy the United States will ever fight. . . .[T]he possibility of U.S. military clashes with China,
Iran or another adversary can never be ruled out. Fear of what future
enemies might do to us, as well as the desire to have a homeland worth protecting, have prompted dozens of U.S. generals to call for
an absolute ban on water boarding and all other forms of torture.”
(Feb. 2, 2008, p.A 20)
HAIR SPLITTING LEGALISMS
I want to probe further the origins of the dramatic switch in U.S. policy over the treatment of detainees immediately after 9/11.
On a basic level, we can find deep roots of this human rights and foreign policy debacle in the Bush-Cheney ends-justify-the-means mentality coupled with a dismissive attitude toward lawyers, civil liberties and international agreements.
A foundational fallacy in the Bush-Cheney hair splitting legalisms over torture and inhumane treatment is a supposed difference between the protection of our Constitution and international law for US citizens and even foreigners held inside the United States (such as al Quada prosecuted for domestic crimes) versus foreign nationals held abroad.
You can abuse them overseas but not at home, the thinking runs.
One proposition is obvious: a detainee’s citizenship or place of confinement are extraneous considerations in terms of the humane treatment of prisoners.
The Geneva Conventions and the Convention Against Torture make no such sophistic distinctions.
The latter treaty, signed by virtually every country in the world, and signed and ratified by the U.S. in 1994, absolutely prohibits torture, cruel, inhuman and degrading treatment of detainees—without exception—even, indeed, especially, in a state of war.
Unfortunately, the Bush Administration seized upon this convenient distinction with regard to the inapplicability of any laws to the Guantanamo Bay detainees and those in the secret prisons around the world.
That legal hair-splitting has been sharply challenged in our courts.
In the first of three dramatic confrontations between the judiciary and executive branches, the U.S. Supreme Court held in Rasul v. Bush in 2004 that Guantanamo Bay in Cuba is functionally part of the United States and therefore federal courts have jurisdiction to entertain habeas corpus lawsuits by foreign detainees.
That issue is back before our Supreme Court in two cases that have been argued and await decision any week now—Boumediene v. Bush and Al Odah v. United States.
At issue is the constitutionality of the Republican Congress and President Bush enacting the Military Commissions Act of 2006 that endorses the Administration’s kangaroo courts for detainees and purports to strip the federal courts of jurisdiction to hear and decide habeas corpus petitions by these prisoners held at Guantanamo Bay and anywhere else challenging their unlawful confinement.
This legislation was prompted by the Supreme Court’s historic ruling in 2006—in the Hamdan v. Rumsfeld decision and second epic confrontation between the courts and Commander-in-Chief—that the military commissions established unilaterally by President Bush for prosecuting enemy combatants in Guantanamo Bay was fatally flawed because the President had acted without constitutional authorization and their procedures were not in accordance with international law.
So we wait with bated breath for the High Court’s pronouncement in this third significant case in the last four years that will define the limits of the President’s powers and decide whether the Rule of Law is supreme in the face of the assertion of unbridled and unreviewable executive powers in time of war.
So far, in the first two rounds, our Supreme Court has not shrunk from the challenge by resorting to the familiar Latin maxim “Inter arma silent leges”—in time of war the laws are silent.
A majority of our nine justices—from the most liberal John Paul Stevens to the most conservative Antonin Scalia—have upheld the Rule of Law even for the most violent terrorists who scoff at such quaint democratic notions as trial by jury and separation of powers.
How will the justices rule in a direct challenge to judicial power—an attempted court-stripping action by Congress and the President in the face of an explicit U.S. Constitutional provision that reserves the suspension of the Great Writ of habeas corpus only to “cases of rebellion or invasion the public safety may require?”
I fervently hope that our Supreme Court stands up one more time and declares that all persons are human beings—regardless of their nationality or combatant status—are entitled to access to American courts to challenge the conditions and legality of their confinement.
NOTHING NEW ABOUT THIS DEBATE
So we have framed the debate:
Will terrorism destroy democracy or will we destroy it first by lowering ourselves to their standards?
Can our idea of freedom and democratic principles such as the Rule of Law survive the way we fight terrorism?
In a changing world, how will we be changed?
There is nothing new about this debate.
Ever since humankind first set about to create order out of chaos in society, there has been a tension with regard to the laws that they enacted to govern themselves.
There have always been two conflicting tendencies:
Tyranny of the law vs. the rule of law.
Rule of the mob vs. democratic rule
Oppression of the weak vs. protection of the minority
In my country, we have faced this issue several times in our history.
During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus for suspected Southern sympathizers.
At the end of World War I, President Woodrow Wilson’s administration rounded up suspected anarchists and socialists who were railroaded to prison.
In World War II, President Franklin Delano Roosevelt ordered the internment in concentration camps of 117,000 loyal Japanese Americans for upwards of over three years—without the slightest due process.
The Supreme Court in 1944 rejected a challenge to the constitutionality of internment in Korematsu v. United States—a decision epitomizing the silence of the judges in time of war
As recounted in my book “In Time of War,” FDR also resorted to a secret military commission for the prosecution of eight Nazi terrorists caught in the summer of 1942 on U.S. soil and planning to blow up airplane plants.
Roosevelt issued an order suspending habeas corpus for these doomed men, but a brave Army Colonel, Kenneth Royall, appointed to defend them before seven retired Army generals, disobeyed the Commander-in-Chief’s order not to seek habeas. While he lost his challenge to the legality of the military commission, Royal upheld the right to zealous counsel and the availability of habeas corpus even for enemy combatants.
If you want to learn more about this fascinating episode in American history and the cautionary tale for today’s conflict between the courts and chief executive, you can read the free copy of the book that the Bar Council has made available.
In Ireland, similar tensions developed between protection of the state from IRA and other terrorists and preserving the rights of the criminally accused.
The Irish have a long history with dealing with terrorism and struggling to balance national security and civil liberties
From my reading, it would appear that overall you did an acceptable job of protecting civil society while at the same time preserving the values that make that society worth preserving.
But I know that the issue is still debated, but what cannot be debated is that the Irish remain a free people in a democratic society at peace for the first time in centuries.
WHERE WOULD DANIEL O’CONNELL STAND?
I would like to end with a question for all of us barristers and judges who have devoted their lives to justice and the Rule of Law:
Where would Daniel O’Connell stand on these issues?
I have no doubt that Daniel O’Connell—who successfully defended the Doneraile conspirators in one of Ireland’s most famous trials—would stand fore square for the prisoners in Guantanamo Bay and against torture and inhumane treatment of POWs, would demand a fair trial for accused terrorists, and would be in court attacking the constitutionality and legality of indefinite detention of suspected terrorists.
I have no doubt that if we could line them up here in this majestic Round Hall, standing next to Daniel O’Connell, you would have an honor roll of celebrated Irish barristers and patriots zealously pleading the cause of these men rotting in the “legal black hole” of Guantanamo Bay: Wolfe Tone, Thomas Addis Emmet, John Philpot Curran, Robert Emmet, and Patrick Pearse—to name only a few in the centuries’ old tradition of Irish barristers championing the cause of the oppressed, unpopular, and indigent.
WHERE DO WE STAND?
The question therefore is where do we stand on what I believe is the most threatening challenge to the Rule of Law and international human rights in my lifetime?
Do we speak out against the legal atrocities being committed in the name of freedom?
Do we sign Amnesty International petitions calling for closure of Guantanamo like so many of the elected leaders here and in the North did recently on the sixth anniversary of the opening of this infamous prison?
Do we undertake to represent the families who may never see their sons and fathers again?
What do we do?
Of one thing I am confident: you will lend your eloquent voices and indomitable spirits to what in the 21st Century is a defining legal battle of our times.
It is time for a call to action by all lawyers and judges in America, Ireland, the European Union and in all societies where we legal professionals, the guardians of justice, are sworn to uphold the Rule of Law.
We must stand with the prisoners—
*like John Adams who risked his law practice and fame in successfully defending the British soldiers in the 1770 Boston Massacre;
*like U.S. Supreme Court Chief Justice Roger Taney who declared unconstitutional Lincoln’s suspension of habeas corpus without Congressional approval and then courageously issued a writ of habeas corpus ordering the war president to release an unlawfully confined prisoner
*like Colonel Kenneth Royal who risked death threats and his career to defend the Nazi saboteurs; and
*like Navy Lt. Commander, a career JAG officer, who successfully challenged President Bush’s military commissions in the Supreme Court and was rewarded by involuntary retirement;
With your help, we will be able to say that for a brief time, great
democracy, once the champion of international human rights, stumbled, but she was restored to her rightful place among the community of civilized nations upholding the Rule of Law.
Over 200 years ago, Daniel O’Connell, who had been deeply influenced by the excesses of the French Revolution that he personally witnessed as a young student in France said: “Oh, Liberty! What horrors are committed in your name!”
We all cherish Liberty.
Our forebears sacrificed their lives for freedom against tyranny—whether it was domination by a foreign power or protecting the world from fascism and communism.
Today we face a similar sinister threat from Islamic extremism.
But in the course of defeating this enemy, we must ensure that we stand tall and squarely behind the Rule of Law because that is why we are fighting—to preserve our democratic values.
We cannot remain silent in the face of injustice.
The law will be silent only if we are.
The answer to terror is not more terror in Liberty’s name.
The answer to terror is not internment and torture.
The answer to terror is the Rule of Law administered fairly and impartially by decent, law-loving men and women like yourselves.
At one of his monster meetings in 1843, Daniel O’Connell proclaimed to hundreds of thousands of his fellow Irish:
“I wish to live long enough to have perfect justice administered in Ireland, and liberty proclaimed throughout the land.”
Ladies and Gentlemen, may we all live long enough to secure justice for the most despised suspected terrorists as we at the same time liberate a free world from this latest scourge of Islamic terrorism.
Thank you.