CommentaryKristine Long, Jurist Student Staff Association (JSSA) President, Pitt Law ’11, attended the First Annual JSSA Debate…
The first debate hosted by the JURIST Student Staff Association concerned the heated topics of terrorism and national security. These topics have became increasingly relevant to Americans in the wake of 9/11, as the United States responded to the threat of terrorism by changing airline security procedures, drafting and passing the Patriot Act, and launching Operation Enduring Freedom in Afghanistan. In the nearly 10 years since 9/11, the War on Terror has impacted every American, and, as such, the debate was both timely and important.
The two participants, Jeffrey Addicott, Director of the Center for Terrorism Law at St. Mary’s University of Law and Susan Herman, President of the American Civil Liberties Union (ACLU), have written prolifically on national security and terrorism issues. Both have been featured writers on JURIST’s Forum service, and it was incredibly fortunate to have both speak about the relevant legal changes in terrorism law. At the beginning of the debate, I incorrectly assumed that the speakers would hold opposing views based on their respective organizations. However, I was pleasantly surprised to find that Addicott and Herman had common concerns and beliefs about terrorism and national security.
Professor Addicott launched the debate with a single question: “Are we at war?” If so, he argued, the United States under both Presidents Bush and Obama has acted in accordance with the laws of war with respect to its treatment of enemy combatants at Guantanamo Bay, Cuba. Addicott said that if the United States is not at war, then the government’s actions are illegal and in violation of both domestic and international law. He argued that the United States is indeed at war and said that it is within the President’s power to make war under Article I of the Constitution. He further cited a September 20, 2001 address to Congress in which President Bush made clear that the 9/11 attacks were an act of war and that the US government would respond with a War on Terror against Al Qaeda. In addition, he said, both Congress and the Supreme Court have acknowledged a state of war with the creation and affirmation of decisions rendered by Military Tribunals, which are permitted only during times of war.
But even if the question of whether the United States is at war is binary, the process by which the United States finds and tries enemy combatants is not as simple.
This murky and vague process is exactly what concerns Professor Herman. While she does not necessarily question whether the US is at war, she is troubled by the scope with which the US applies its traditional war powers to a non-traditional enemy. In the past, she said, war and enemies were readily discernible – enemies wore distinct uniforms and countries formally declared war on one another. However, terrorism and terrorists do not fit this traditional paradigm. The concern posed by Professor Herman, in response to Professor Addicott’s question, is: “What are the limits to the United States’ war powers? She said that under the guise of its state of war in Afghanistan, the United States can detain American and foreign citizens, both domestically and internationally. She said that by labeling citizens “enemy combatants,” the United States can question and detain them for years with limited rights. Yet, Professor Herman wonders, if the international legal community cannot cohesively define a terrorist act, how can it begin to define the term “enemy combatant”? She did not disagree with Professor Addicott’s state-of-war analysis, but she was adamant that the US needed to establish a transparent process by which citizens or enemy combatants can receive a fair trial and due process.
Despite some diverging opinions, both Addicott and Herman agreed that there are differences between criminal and terrorist acts and that the legal community has yet to clearly distinguish between the two extremes. Both participants cited anecdotal evidence that is troubling to either side: a college student was detained and questioned in an airport for merely having Arabic flashcards whereas detainees found innocent and released went on to commit terrorist acts.
Currently, governments are at odds as to how to combat the War on Terror with traditional legal principles, and the US Supreme Court continues to wrestle with the issue of what constitutes fair process. In the cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court failed to form a majority opinion as to the proper legal position courts should take with respect to enemy combatants. The cases did hold, however, that US citizens have the right to challenge their detention on the basis of due process. In contrast, under the Geneva Conventions, the government has the right to indefinitely detain non-citizens until the end of the war.
The speakers’ questions illuminated the difficult task governments and legislatures have in creating terrorism policy. While the participants did not take completely opposite positions, there does appear to be tension between robust national security and individual civil liberties. In my opinion, the two principles must be balanced, but such a balancing act has eluded this government for generations. As Alexander Hamilton stated in Federalist No. 8, “safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates.” In maintaining that balance, our government must be aware of the consequences of moving too far in either direction.
The questions posed by legal scholars and governments are integral to how the general public perceives the war on terror. Thus, informed public debates such as this one are vitally important to maintaining America’s legal tradition of a marketplace of ideas. The dissemination of information is a positive step toward properly addressing the murky issues of terrorism and national security.
