Dean's Address

Despite the absence of valuable information, their detention continued because the authorities had “releaseaphobia”. That was the word the Army used in the case of a large batch of detainees: Releaseaphobia. While they believed they had no intelligence value to yield, “We were afraid to release them because we might be wrong.”

Let’s put that into further context. How long will the detainees be held? A story which appeared on January 2, 2005, gave a surprising answer. The Department of Defense has requested that $25,000,000 be appropriated to build a more permanent home for the detainees, the ones for whom there is insufficient evidence to charge them with any crime. The Department of Defense wants to build a brand new prison for these detainees because it may hold them for life.

What courts, if any, may review these life sentences? Our government argued that the courts were powerless to review the detentions of non-citizens held by our military outside the physical confines of the United States. Abu Ghraib was clearly such a place, but so was Guantanamo Bay, it said. The Supreme Court disagreed with respect to the detainees held at Guantanamo Bay.

Ordered to provide a process under which the detainees could have the basis of their detention reviewed, the government elected to have the Guantanamo detentions reviewed by military panels, not federal judges.

Do these panels meet the requirement for an independent and neutral review? In some instances the panels have seemingly ignored substantial evidence favoring release in favor of weak evidence for continued detention. There are cases now pending in the United States District Court for the District of Columbia challenging the detentions and the manner of review. If detentions at Guantanamo Bay are reviewable because the

United States controls that portion of Cuba, then would removing the detainees from Guantanamo Bay eliminate the jurisdictional basis for review altogether?

The executive branch apparently believes so. It is attempting an end run around judicial review called “renditions”. Under renditions, physical custody of a detainee is transferred to the agents of a foreign government willing to accept responsibility for his/her custody. We are to take comfort, we are told, in our government’s assurances that the receiving states, including Yemen and Egypt, have orally agreed to the safety and humane treatment of its new charges.

Again the courts have interceded. The majority of recent rulings by the United States District Court for the District of Columbia have enjoined renditions pending further hearings.

What is our government’s view of the rule of law as it applies to detainees held in foreign countries at our request? The Department of Defense has remained strangely silent on the subject. The Department of State has been more forceful.

Let me turn to a speech made by former ambassador, Larry Napper. At the time of his speech he was the head of the U.S. delegation to the Office for Security and Cooperation in Europe.

Ambassador Napper approached the rule of law this way. When he came to the Organization for Cooperation and Security in Europe, he said, "We must recognize that unless there is an independent judiciary and a separation of powers and transparency in government, there will be no rule of law."

When Ambassador Napper made those statements, he wasn’t talking about the United States. He was about to lodge complaints against Belarus, Kyrgyzstan, Turkmenistan and others. They were members of the Organization for Cooperation and Security in Europe. Ambassador Napper took particular aim at Turkmenistan because it had seized people without charging them, had held them without counsel, and had subjected them to show trials, following which they disappeared; there was no record kept of what had become of them.

Two weeks ago the Washington Post released documents it had obtained about “ghosting”. There was a wing on Abu Ghraib, a wing in which “ghosted” detainees would be brought by the CIA. “Ghosted” referred to the fact they had no name, were given no identity other than a serial number, and among other things, they were not allowed to be interviewed by the International Red Cross.

The precise number of ghosted detainees remains unknown. They were considered under the “jurisdiction” of the CIA. What became of some of them is known. One body was removed from this wing of Abu Ghraib packed in ice because the discovery of his death in his cell had been delayed by a number of days. A local taxi driver was paid to take him away.

Two other ghosted detainees were removed in the custody of an Other Government Agency (or OGA - a well-known pseudonym for the CIA) agent. Their bodies were found in shallow graves outside of Baghdad. In terms of Ambassador Napper's constituent ingredients of the rule of law, we didn't seem to be doing too well.

A large study was conducted about our handling of detainees. The report was 360 pages long. It was to be submitted by the Department of the Army to the Congress. Only 21 pages of executive summary have been released. In there is supposed to be as much detail as is available to the Department of Defense about the ghosted detainees. But the CIA and DOD, while they had a working agreement that the ghosted detainees could be kept at Abu Ghraib, had a further agreement that the details of those detentions would be the exclusive province of the CIA.

When the admiral who was conducting that study reported in his 21 page executive summary, people observed that the summary was in direct conflict with three other Pentagon reports obtained by others under FOIA requests in which of the 70 ghosted detainees, six were known to have died in captivity without ever being seen by International Red Cross, let alone counsel.

How should we discuss the rule of law with our Chinese guests? Sally and I have discovered a couple of things about our Chinese guests. They know a lot about us. They know a lot about O.J. They wanted to talk about, “How did O.J. get off.” They also know a lot about our political institutions. Will this be the year they want to know our position on the ghosted detainees and the rule of law?

So far we've been lucky. Our Chinese guests are extremely polite and haven't confronted us with many hard questions. "What do you mean by the rule of law, at least with respect to these detainees – ghosted or otherwise?”

Transparency in government, as Ambassador Napper called it, doesn’t come easily. While this is a serious topic, transparency has taken some silly turns. The FBI did an investigation of the abuse of detainees at Guantanamo Bay. The FBI reached two particular conclusions that Senator Carl Levin learned belatedly because in the first draft of the FBI report they had been redacted.

The FBI concluded, for example, that torture, abuse or cruel or inhumane treatment doesn't tend to produce useable intelligence. In fact it is likely to provide bad intelligence rather than good. Many people in the intelligence service have known that for a long time. That's what the FBI reaffirmed after it investigated the incidences at Guantanamo.

It made one other observation. These abuses, whether they are technically torture or not, are likely to get in the way of the prosecution of any of the detainees for war crimes because they are confessions or information gathered illegally and improperly.

The FBI decided as a courtesy that it would circulate the draft report of its investigation before it was released to Congress. The Department of Defense said, “Oh, you can't let anyone know that the intelligence we've gotten is suspect and probably of little value. Redact that.” The second directive, this from the Department of Justice was, “Oh, redact the part about that using these techniques would make it difficult to prosecute these people for war crimes.” At the insistence of the Congress, both redactions were “unredacted.” Those were hardly international secrets or intelligence secrets that anyone in the world wouldn't have known.

Has anybody here done any litigation under the Patriot Act? The Act provides, among other things, for the issuance of national security letters. The FBI can send a letter as an administrative subpoena, if you will, to someone requesting records with respect to a third party. There's a gag order as part of the Patriot Act that says if you get a national security letter, you're not supposed to let anybody know you got a national security letter. Just turn over the documents.

The ACLU, on behalf of an internet service provider prepared a lawsuit attacking the national security letter features of the act, but because of the gag order provisions, the lawsuit had to be filed under seal and using pseudonyms.

After the case was filed and came before a United States District Judge, a dispute arose about what part of the existence of this lawsuit could be disclosed or released. In the initial skirmishes some claims of national security were framed by our Department of Justice.

I apologize if I'm a little harsh, but among the redactions that the United States District judge ordered unredacted was a memorandum letter prepared by the ACLU citing a federal case and quoting from that case. 

The Department of Justice had requested that the name of the case and the holding in the case be redacted even though it was a United States Supreme Court case. The judge said, “You're going to have to unredact that”. The Department of Justice then filed a supplemental memorandum of law proposing that the ACLU be allowed to quote the case name, but not the text from the opinion. The United States District judge ruled the public was allowed to know what the prior court held and that the ACLU was relying on it.

I need to talk to you briefly about another rule of law crisis. Our time of crisis is not just terrorism times. There are troubling attitudes in a significant portion of our political community, and even in parts of our legal community about judicial independence.

In our bedroom communities, the crisis is reflected in the findings of a study from the University of Connecticut. Over 100,000 high school students were surveyed, 80,000 teachers and 15,000 administrators, in what was deemed to be the largest survey of its kind of this age group. The survey was addressed to the First Amendment of the Constitution of the United States and the freedom of press, freedom of speech, and freedom of religion.

The specific freedoms guaranteed by the First Amendment were proposed to these high school students not as existing Constitutional protections, but as proposals. The students were asked what they would think if we had protections like that. One out of three felt that the protections were too broad. To some they even seemed un-American. That's pretty frightening.

The conclusions educators reached from this polling are obvious. We have not educated our young people to understand and appreciate our Constitution and our rule of law.

Senator Byrd from West Virginia has proposed legislation that would require that September 17th of every year we devote a school day to the reading and review of our Constitution so that our young might have a better appreciation of it growing up.

In the Connecticut survey, the students surveyed thought, for example, that flag burning was clearly illegal. Eight out of ten thought that flag burning was illegal and should be. I really don't endorse flag burning, but I’ve consistently opposed legislative efforts to declare this form of speech illegal. I've never had a sense that flag burning created a clear and present danger, but suppressing expression surely would.

There's another movement that poses a danger for us and our rule of law -- media consolidation.

Twenty five years ago the press would follow debates on domestic and international issues, and report on them.

Today, five companies own the broadcast networks, own 90 percent of the top 50 cable networks, and produce 75 percent of all prime time programming. People of color constitute over 30% of America, but they own only 4.2% of the nation’s radio stations and around 1.5% of TV stations.

There are studies, that I can share with you, which rather conclusively demonstrate the decline in overall air time for issues of national and international importance. You have been witnesses to a transformation of our information networks. We have transitioned from relatively neutral broadcasting of news items to overtly political slants on stories. We have seen stories promoted as news by otherwise respected journalists who in fact had been hired or planted to feed stories in support of a particular public policy. News “hours” are only 30 minutes long and include up to 9 minutes of commercials. In-depth coverage of issues has been replaced by summary stories. USA Today is a natural for today’s market, but it is not alone. Without regard to the reporting media, instead of in-depth reporting, we get the headlines and their bias, but not the meat underneath.

Over the last 25 years the media has produced less and less material dealing with our Constitution and the important decisions of the Supreme Court, unless they happen to reflect specific issues important to particular constituencies. While we hear a great deal about Roe v. Wade, the Ten Commandments, and “In God We Trust”, little was reported about the Courts’ decisions on the detainees. Death penalty decisions make the headlines only if the Court reverses a sentence of death. Supreme Court opinions which make reference to the laws of other nations attract vitriolic commentary from critics who fail to appreciate our 200 year reliance on the wisdom of others.

Until recent days, little was said about judicial independence and the rule of law. Perhaps the most disturbing recent developments have been rather relentless attacks on the judiciary itself.

President Hunter addressed the Conference of Chief Justices at their dinner in New York. In our journal is his brief address. It was eloquent and it was poignant. He assured them that we stood with them in the fight for judicial independence. The Chief Justices from 47 of the 50 states were in attendance and responded enthusiastically to his remarks. They feel under attack. The nature of the attack? The chairman of the House Judiciary Committee has been quoted as saying, “There's a misconception in this country that we're supposed to have an independent judiciary!”

There was a conference recently held in Washington, D.C. attended by a number of well-known conservatives and members of Congress. The conference took three positions of note:

1. Let's commence bills of impeachment for the following Supreme Court justices based upon their “bad conduct”. (You can pick four, can't you? There was a surprise in that there were five on the list. It would have only been four had Justice Kennedy not written the majority opinion in a case holding it unconstitutional to execute someone who was under age at the time he committed the crime of murder.)
2. Members of Congress, House and Senate, in attendance at this session said that, “ If bills of impeachment don’t pass, then those in the House and Senate who will not vote for impeachment should be impeached.”
3. If that doesn't work, “We should cut off the money to the courts. When we get their budget under control, we will get their attention.”

One writer stood, and I'll leave his name for a later time, but he’s well known in his field -- and he said Joseph Stalin had an answer for Justice Kennedy, “No man, no problem.” The full statement of Stalin was, "You get rid of the man, you get rid of the problem.”

We know of the tragedy in Atlanta, the killing of the judge, his courtroom clerk, his staff, the deputy sheriff. By all evidence it was not politically motivated in any sense, but was the act of a man charged with a drug offense who saw an opportunity to escape.

We know of the killing of the family members of the federal judge in Chicago. Again, an act not associated with political conclusions reached by the killer, but by personal reasons of retaliation. Nevertheless, a member of the Senate from the great State of Texas rose on the Senate floor to suggest those killings were manifestations of the people's unhappiness with the judiciary.

One last thing and I'll leave you and we'll have a reception. A book about the Supreme Court has been as high as third on the New York Times bestseller nonfiction list. Ordinarily you'd think it would be a good thing to have Americans express such an interest in the court. The title, however, is alarming: Men in Black, the Judges Who Are Destroying America.

Unless we as individuals, as Fellows within the Academy, as members of our law firms, as leaders in our communities, join with responsible political leaders to counter this all out attack on judicial independence, the existence of which is absolutely essential to the rule of law, we will face dark, dark days.

President Dwight David Eisenhower said that “Only America can bring America down”, and he added, “How far can we go without destroying from within what we are trying to defend from without?”

Thank you for this opportunity to be with you this morning. I appreciate it.