International Law in US Courts Talk
Jules Lobel, US Center for Constitutional Rights
April 14, 2008
[0:08] So, I am going to go ahead, actually, and get us started. And
I'm just going to say a couple of words. Yeah, it's OK to get your
coffee. This is kind of an informal group, and we're just happy to have
you guys here.
This was kind of an extra bonus, like an extra opportunity that we got,
because Jules Lobel was going to be here in town. He said he'd be
willing to stop by and talk with some students, if our students would
be interested. We had a feeling that some of you might be, and so we
said, "Yes, please do come." So, we're very fortunate.
Professor Lobel is a professor at the University of Pittsburgh Law
School. But, he's also an attorney with the US Center for
Constitutional Rights, and he's been there for 25 years. He's currently
the vice president there. Come on in and have a seat.
he's been litigating a lot. In addition to teaching law students, he's
been litigating, consistently, many issues relating to the application
of international law in the United States courts. He's advised
governments of other countries, including the Nicaraguan government
regarding the development of its first democratic constitution,
similarly with the Burundi government on constitutional-law issues.
So, he has expertise along a wide range of issues, and I feel really
fortunate that we could get a little bit of his time today. So, I'm
going to go ahead and let you do your thing.
Professor Jules Lobel:
[1:28] Well, thank you, Michelle, for that nice introduction, and thank you for inviting me.
I don't know how many of you here today have seen Steven Spielberg's
science-fiction movie "Minority Report." For those of you who haven't,
in that movie, the Justice Department hits upon a scheme to stop all
crime in Washington, DC. Through the enslavement of psychic visionaries
who can predict who is going to commit a crime in the future, the
Justice Department can then go out and arrest and convict, under
pre-crime laws, people who would commit crimes in the future before
they actually commit the crimes. And Tom Cruise plays the leading
actor. And I won't tell you what happens, but the whole scheme, as in
many science-fiction movies, goes awry.
[2:22] Now, President
George Bush doesn't claim to have any psychic powers, and he doesn't
claim to have any psychic visionaries in his administration - certainly
now that Karl Rove is no longer in the administration. But, in fighting
its War on Terror, the administration has adopted essentially the same
scheme as Steven Spielberg puts forth in the movie "Minority Report."
Now, why do I say that? What former Attorney General Ashcroft said: the
whole approach to fighting the War on Terror is what he called "the
preventive paradigm." And in both the movie "Minority Report" and in
the administration's basic, underlying strategy, the theory is you
can't wait till terrorists or criminals do something bad, because then
it's too late. You have to move aggressively, coercively, to prevent
those terrorist actions from occurring.
[3:26] So, whereas the
normal rule of law requires that, before you lock somebody up, you have
to have objective evidence that they've done something wrong, before
you invade another country, you have to have objective evidence or you
have to show that they are attacking you, the administration says we
now have to use preventive detention, preventive wire-tapping,
preventive war - most dramatically - and preventive torture to obtain
information, to lock people up, to invade people's privacies, and to
attack other countries before they attack us, as a preventive measure.
So, underlying the whole War on Terror, in our view, is this shift from
the normal rule of law, which requires that somebody has done something
wrong first before you use coercive force, to a preventive paradigm,
which says we have to use force against people, or coercion against
people, before they do something.
[4:31] Now, there is nothing
wrong with prevention. We use it all the time: preventive medicine. I
assume all of you brush your teeth daily to prevent tooth decay. What
you don't do is engage in random root canals, because if you did that,
if you said every time we have some suspicion that a tooth is going to
go bad you do a root canal, you wind up with no teeth.
And so, the problem is the marriage of prevention with coercion.
Prevention on its own is fine. Coercion, the state can use, under the
rule of law, if the person has done something wrong or the country has
attacked you. It's taking coercion and wedding it to prevention and
putting the two together.
[5:19] Now, I would like to talk about
a case that I'm currently litigating, which really illustrates this
preventive paradigm at work. It's the case of Maher Arar. Maher Arar is
a 36-year-old Canadian citizen, married with two children. He's a
technology expert, a consultant. He was working for a Canadian company,
and he was on vacation, and the company asked him to return home. He
took a flight from Switzerland and stopped at JFK Airport in New York,
just to change planes to go back to Canada.
[5:59] While he was
at Kennedy Airport, the INS officials pulled him over, said, "We want
to question you," based on a tip they had gotten from the Canadian
Royal Mounted Police that he had some association or he had some
meeting with somebody who was a terrorist. They interrogated him quite
harshly, quite vigorously, for a couple of days, and then sent him to
the Metropolitan Detention Center in New York City, where they kept him
in solitary confinement and questioned him again for two weeks.
At the end of the two weeks, they said, "We're going to deport you."
And he said, "Fine. Send me back to Canada. I'm still holding a
ticket." They said, "No. You were born in Syria, so you have dual
nationality, and we're going to send you to Syria." Mr. Arar objected,
saying, "You know that if you send me to Syria, they'll torture me. I
left Syria early, when I was 17, with my family, and never went into
the military, number one." And number two, the state Department reports
show that Syria routinely tortures many of their prisoners.
Nonetheless, they put him on a CIA jet, lying to the Canadians, lying
to his lawyer about his whereabouts, and sent him to Jordan and then to
[7:19] When he got to Syria, he was put in what he termed
"the grave cell," because it was three feet wide, six feet long, and
seven foot high. He was tortured. He was beaten with electric cables.
He was threatened with putting in a tire, which they used to immobilize
people for questioning. Rats and cats ran across the top of his cell.
He was listening to the screams of other prisoners being tortured. And
he was kept there virtually all the time, 24 hours a day, for a year -
for a year, in that situation - until the Canadians finally...
The Canadians, at first, didn't know where he was. They found out, and
they finally put pressure on the Syrians, and the Syrians released him,
saying that they had no evidence that he was a terrorist of any kind.
They didn't charge him with anything. They released him.
The Canadians, then, launched into a two-year investigation, which
resulted in a 1500 page report compiled by a very prominent judge in
Canada, which concluded unequivocally, that Mr. Arar had nothing to do
whatsoever with terrorism. He was not a terrorist. He had no
association with terrorism. This was all a mistake. And the report
urged the Canadian government to apologize for its role, which was just
simply providing this information and to pay him compensation, which
they now did to the tune of $11 million.
[8:49] Meanwhile, the
Center for Constitutional Rights, as represented Mr. Arar, we've sued
in Federal District Court in New York City. And the Bush administration
has taken the dramatically opposite view than the Canadians and has
stonewalled, refused to apologize, refused to make any compensation to
[9:07] Now, if you look at this case, I think it shows
both the preventive paradigm and how it is in tension with the
fundamental rule of law. The United States government has been engaged
in a program of rendition for many years, before this administration.
The first Bush administration did it. Clinton did it. And originally,
it was up until September 11, it was designed to get people who were
outside the rule of law, who could not be extradited, and kidnap them -
in my view, illegally kidnap them. And bring them to a country where
they could be tried.
[9:47] But, the purpose of it, as illegal
as it was, was not preventive, but was to try somebody for a crime they
had allegedly committed in Egypt, in the United States, or wherever.
After September 11, the Bush administration dramatically changed the
nature of the program, which has now ensured over 150 people.
The question we asked is: Why would the United States government send
somebody who they had suspicion was a terrorist to Syria, which is
considered a rogue state, part of the axis of evil, which we think is
not helpful in the war on terror, instead of our ally, Canada, which is
one of our strongest supporters in the war on terror?
There is only one reason that we can come up with. And that is that
they wanted to send them to Syria, because they believed that Syria
would use coercive measures (torture, if you call it what you should
call it) and that they would detain them preventively.
And Canada told the United States officials that they could not do
that, because they told the United States officials that all we have is
suspicions. We'll put them under surveillance. But, we cannot detain
them. And certainly, we can't use harsh interrogation methods on them.
We can't torture them.
[11:18] Syria could do what neither
Canada or the United States could. And that's precisely why we sent
them to Syria. We sent them to Syria to be tortured. You know, I was
just testifying in Congress on Thursday. And one of my co-panelists was
the legal advisor to the State Department. And I said, "Well, why did
you send this guy to Syria? Why do you think so?" He said, "Well, we
could, because he was a Syrian national."
[11:44] I said, "Well,
you could. But, that doesn't explain why you did. Why wouldn't you send
him to Canada?" And the Bush administration has never answered that
question. But, the only plausible answer is a preventive one. Is that
they wanted to get information from him, which they thought might help
them prevent future terrorist crimes. And the only way they could do
that would be to detain him and use torture or harsh measures.
Nobody, of course, justifies torture as a method of punishment or as a
method of... You know, just for sadistic purposes. The only rationale
that anybody gives for it is preventive. Namely, it'll get us
information, which will prevent future terrorist crimes.
That's what happened to Mr. Arar. And I think, it illustrates the
transformation of the rendition program from an illegal program
designed to bring people to justice illegally (and I always opposed it)
to a program not designed to bring people to justice or to bring people
within the rule of law, but designed instead for a preventive measure,
to get information to prevent future terrorist crimes.
Now, as I've said, we've sued in Federal Court. And I think this case
illustrates some of the key characteristics of a preventive paradigm
and why it's inconsistent with the rule of law. The first is that the
whole preventive paradigm is based on substituting suspicion, hunches,
inferences for objective evidence. And you can see that in Mr. Arar's
[13:30] The regional INS director concluded that Mr. Arar
was unequivocally an Al Qaeda member, despite the fact that Canada told
them, "We have our suspicions. But, we have no evidence." And by the
way, his deportation rendition to Syria was signed off by the acting
Attorney General and not just by lower level officials.
This was a high-level program. This isn't some rogue soldiers in Abu
Ghraib or something like that. So, the first key element of this new
approach is to substitute suspicion for objective evidence.
Ron Suskind, a journalist, wrote a book called "The One Percent
Doctrine." The title of the book comes from a quote that Cheney
purportedly made, in which he said, "If there is a one percent chance
that somebody is going to commit a terrorist crime or a nation is going
to commit a terrorist crime, you have to act as if it's a certainty."
That's the very nature of this preventive paradigm.
there's some slight change... They claim we're in a period where we
cannot allow that chance to occur. And we have to act as if it's a
certainty. That's what gets you Arar being sent to Syria. It doesn't
just do that. It gets you the war in Iraq.
[14:55] You know many
people say, and I think they have very good reason to say that, that
all the Bush folks were lying. The Bush administration was just lying
on this. Rumsfeld, when he said, "We know where the weapons are." Bush
said, "We're certain that there are weapons." Powell said, all of them
said, "We're certain that there are weapons."
didn't say we have some suspicions that there are weapons. They said
that they were certain that there were weapons. And people say that
they were just lying. And if you look at the problem of this war, it's
that you have a lying administration, which got us into war based on
lies. And I think that's a reasonable conclusion.
[15:32] But, I
think underlying it is something more fundamental, which is the notion
that in crisis times, people move to this preventive paradigm, which in
the war model is preventive war, and that we have to go to war to
prevent another nation from attacking us. We can't wait for them to
attack us and then respond, because as Condoleezza Rice said and Bush
said, "Then, we might see the mushroom cloud upon us." So, we've got to
[16:01] And it's the same basic approach that gives
us the Arar case. It's the substituting of suspicion for something
objective happening. And that's what fundamentally, I think, brings us
the Iraq war.
[16:16] Many, many people had suspicions about
what Iraq was doing and whether they were developing weapons of mass
destruction. They turned out to be wrong. The rule of law requires that
you can't attack them based on those suspicions. That's what
international law says.
[16:29] They told us, "We can't wait.
And therefore, we have to attack them first." And if you look at what
that has brought us in history, it's not just this Iraq war. World War
I, the German high command said, "We can't wait for Russia and France
to get stronger, because if they get stronger, they'll attack us. We
have to attack them now." Preventive war.
Peloponnesian War, we have a chapter. This talk is somewhat based on a
book I've done: "Less Safe, Less Free" with David Cole. For a chapter
on the history of preventive war, one of the earliest instances of
preventive war is the Spartans arguing that Athens was getting too
strong and that they were suspicious that they were going to attack
[17:12] They attacked first, leading to the Peloponnesian War, which almost destroyed Greek civilization.
World War II, the Japanese thought that the United States might
eventually attack Japan, which was not an unreasonable suspicion, and
therefore, launched the attack at Pearl Harbor to prevent war being
brought upon them.
[17:38] And probably most dramatically, a
preventive war that didn't occur was the Joint Chiefs of Staff and most
of Kennedy's advisers urged him to attack Cuba when the Soviets were
putting nuclear missiles in Cuba. And Robert Kennedy, in the
conversations at the White House, was said to have once said, "I now
know how Tojo felt planning the Pearl Harbor attack." And they rejected
that option, moving towards a coercive but less-forceful blockade. But,
there, again, the idea was "We can't wait. We cannot wait till the
Soviets armed these missiles in Cuba. We've got to attack first."
[18:27] So, in all these cases, the same thing.
And finally, right after September 11th, the United States locked up
over 5000 people, Muslim aliens, on suspicions that they were
terrorists - a preventive detention scheme. Many of them spent two,
three months in jail, in very harsh conditions.
case, case of Ali Al-Maqtari, who was a Yemeni man who was
accompanying, on the day after September 11th, his wife, who was an
American soldier - was Muslim, but an American soldier - to her base in
Kentucky. And while they were traveling to Kentucky, a number of people
in Kentucky noticed a very suspicious couple, and the FBI came and they
arrested him. His wife eventually was discharged from the military. He
spent two or three months in a federal penitentiary, until he was
[19:27] And the basis of these suspicions
were, number one, that she was wearing a hijab, which is a Muslim shaw;
number two, that they were carrying box cutters, which it turned out
they used for their gardening-supplies work; and number three, they
were speaking a very suspicious foreign language, which turned out to
[19:51] Symptomatic of the problems we were later going to confront.
So, in all of these cases, what is done is the substitution of
objective evidence, which the rule of law requires, and substituting
suspicion. That's the first key element of this preventive paradigm.
Second is the rule of law requires equality. In fact, you could argue
it's the main principle in the rule of law. If you go to the Supreme
Court, for those of you who ever have a chance to argue or have a case
in the Supreme Court, you'll notice, when you go up the gigantic steps
which lead you to the exalted place, over the entrance, it says, "Equal
justice under the law." The whole notion of the preventive paradigm is
to get rid of equality and to treat aliens different than citizens.
So, when we sued, the first argument the government makes is "Arar has
no rights, has no constitutional rights, because the Constitution does
not protect aliens. He was tortured in Syria. He was outside of our
country. He never actually was admitted to the country. He was brought
into jail in New York, but he was never formally admitted." So, there's
the fiction that he's not in the country, and therefore, the
Constitution doesn't protect him.
[21:10] And it's not just in
the Arar case that we've run into this. In Guantanamo, which we
represent the Guantanamo detainees, in Guantanamo, over and over again,
the government argues they have no rights because they are being
detained outside of the United States. In fact - erroneously, as it
turns out - that's why they chose Guantanamo, because it was outside of
the United States and they figured they could get away with doing
whatever they wanted to.
[21:37] The ACLU has brought a case on
behalf of, and we've brought cases on behalf of, Iraqi prisoners who
were tortured in Abu Ghraib. And that case was dismissed, because Iraqi
prisoners, tortured in Iraq by US military soldiers, have no
constitutional rights, and therefore, no right to sue in court.
Now, this argument is based on what's known as a compact theory, or
contract theory, of the Constitution - namely, that the Constitution is
a compact between the government and its citizens, and therefore,
people who are either citizens or who live in the United States are
part of that compact. Anybody else is not part of it. And the
Constitution only prescribes conduct by the government within that
[22:24] Our view, my view of the Constitution is
that it's not a contract at all - that it is a code of conduct. It is a
code that the citizens of the United States prescribe for what conduct
is permissible and what is not. We are saying, in our Constitution, not
just that we agree to do certain things, but that this is the kind of
government we want and not some other kind of government. We want a
government that doesn't torture people, that doesn't commit abuses. And
it doesn't speak to who is being tortured, but what the conduct is.
In short, we define who we are by what our government does and what we
allow our government to do in our names. And that is an alternate
theory of the Constitution. Unfortunately, we've had trouble. The
courts have not been very receptive to that theory, I'd say.
In the Arar case, as in the Guantanamo case, we've litigated this on
fairly narrow grounds. In the Arar case, we say, "But, he was here. He
was physically in this country, and he was sent to Syria, we allege,
for the purpose of being tortured. So, the conduct that violates the
Constitution occurred here - namely, the taking him here and sending
him to Syria for the purpose of being tortured." In Guantanamo, we say,
"Guantanamo is a US base. It's totally controlled by the US, totally
under their jurisdiction."
[23:56] But, the real, fundamental
question in all these cases is: does the Constitution apply wherever
the government acts, or only in very limited circumstances? As I say,
in Arar, in the district court, we were able to get around this problem
by making that argument.
[24:13] But, the government comes up
with another argument, even though we've gotten around that one, which
is the third basic problem of the preventive paradigm. The first one is
substituting suspicion for evidence. The second one is double standards
for equality. The third is no accountability, no judicial review.
The government now says, "This case, the Arar case, raises all sorts of
political issues. It raises questions of what the Syrians told us." For
example, they claim, "The Syrians sent us diplomatic assurances that
they wouldn't torture him. That's what we think they're going to
claim." They never get to this, actually, but that's what they argue.
We ask them back, "You know, you say that you don't believe the Syrians
on whatever they say: what they've done in Lebanon, how they treat
their own people, whether they're in league with terrorists, whether
they're aiding the Iraqi insurgents. You don't believe them. The only
thing you apparently believe is that they wouldn't torture Arar. That's
[25:20] But, in any event, the district court
dismissed this case on the ground that there is no private cause of
action, under the Bivens Doctrine - which, in the questions, I could
get into - but that we don't have a private cause of action because of
the diplomatic, foreign-relations, political aspect of the whole case.
And as I've said, this isn't just what they've argued here, but they've
argued in all of these cases. In the Guantanamo cases, they argued that
there's no habeas, there's no judicial review. We are fighting this
ongoing battle, where the preventive paradigm says, "You have to let us
do this, and you can't have accountability."
[25:59] We're on
that issue in the Second Court of Appeals. We also have a narrow
argument given back to that, which is that Congress explicitly provided
for judicial review. If an alien is being sent to a country like
Syria... Arar had a right to test that extradition, test that
deportation or rendition, in the Court of Appeals.
denied him that right. They held the hearing to send him there Sunday
night at nine o'clock at night, from nine o'clock until three in the
morning. They left a message on his lawyer's answering machine that
afternoon, which of course she wasn't going to get on Sunday. They then
the next day lied to his lawyer, saying he was being sent to New
Jersey, when in fact he was being sent to Jordan. They were afraid his
lawyer would run into court and try to get a stay - an injunction -
against this. They took actions that denied him review at the time when
review would have been effective. Therefore, you have to give him a
private course of action later.
[27:10] So far, we've lost on
that. We've argued that in Second Court of Appeals, and we're awaiting
decision. If we win on that, the government has its ace in the hole,
which is, "This is all a state secret, and it's protected under state
[27:23] Another claim was brought by a German
citizen, who was seized in Macedonia - picked up, illegally taken,
kidnapped - by the CIA to Afghanistan. He was kept in Afghanistan and
brutalized for four months, until they realized the only connection he
had with terrorism was a similar last name to somebody who's on their
list. They realized it was a total mistake. They then dropped him back
off in Macedonia; they dumped him. He sued in US courts, and his
lawsuit was dismissed under the state secrets doctrine. That's a look
into this whole matter involving state secrets.
[28:12] We have
a distinction in our case, because what happened to Arar was open and
public. Everybody knows who did it. It wasn't a covert, clandestine CIA
operation. It was a Justice Department operation. But, we'll see where
we get... Anyway, that's the Arar case.
[28:27] I want to spend
another few minutes on the following problem. The Bush Administration
says, "OK, Lobel, you might be right about everything you say. But,
we're doing this to make us safer. In a time of crisis, in a time of
emergency, in a time of war, we have to sacrifice some of our liberties
to make us safer."
[28:53] The question is, are any of these
things making us safer? We've looked at that, and here's what we've
concluded. First of all, in April of 2004, the State Department
announced with great fanfare that the measures they were taking had
reduced terrorist incidents all around the world. Two months later,
Secretary of State Powell, in a grim mood, had to admit they had
miscounted. They didn't have good mathematicians, apparently, at the
State Department. They couldn't add up the numbers right. Not only had
it not decreased, but it had doubled. The terrorist incidents from 2001
to 2004 had doubled.
[29:43] I don't know. Maybe they counted it
based on eight months and not 12 months. Powell admitted there was a
flaw in that calculation. Now the numbers are there for people to add.
In fact, terrorist incidents around the world have quadrupled since
2001. Suicide bombings have pretty much quadrupled. I'm giving you
round numbers, but they've pretty much quadrupled since 2001.
In terms of the preventive detention measures, they detained over 5000
aliens. Does anybody know how many of them today stand convicted of any
terrorist crime? Anybody want to give me a figure? We'd have a
philosophical debate here. If there were 5010 people were convicted of
conspiring to commit some terrorist crime, then the question would be a
philosophical matter. Is the conviction of 10 people worth locking up
over 5000 people who are totally innocent? That would be an interesting
[30:48] How many do you think the number is?
[30:50] Just one. [crosstalk]
[30:52] The number is zero. The answer is zero.
Not a single one of these people were ever convicted of a terrorist
crime. They took 83,000 people and sent them down to a special
registration program. They targeted, again, 83,000 people from
countries that they were suspicious of. Again, if you look at all
83,000 individuals, not a single one was convicted of any terrorist
[31:19] They're batting zero. I cannot see how that could
possibly make us safer. To alienate the Muslim community in this way
and to lock up innocent people, when you're not getting a single person
who is a terrorist. That can't possibly be of any use.
But, the government says, "Out of these 5000 people, we did deport 500
of them. Over 500; 515 to be exact. So, it shows that we were doing
something useful." It's true they deported 515. Almost all of them on
minor visa matters. Somebody falsified their visa, or they're people
shouldn't have been here. Out of those 515 people, they didn't deport
any of them until they first went through a whole FBI investigation to
clear them of any terrorism. They weren't going to deport somebody who
was a terrorist, and send them back to Saudi Arabia to plot terrorism.
Their theory was - and we're challenging this in another court case -
that somebody who is deportable on a minor visa violation, who said, "I
want to be sent back"... There's no evidence they've done anything
wrong. They kept them for months and months in solitary confinement as
potential terrorists, until they finally cleared them. Then, when they
cleared them, they sent them back. These 515 people they deported are
misses, not hits. Not one of them was a terrorist.
could go on, but I'll just give you one other statistic. The federal
government, when it prosecutes people, generally gets a 92% conviction
rate. If you learn one thing from this lecture, it's that if you're
being prosecuted by the federal government, you're in trouble.
[33:12] A 92% conviction rate.
For terrorist crimes that they've been prosecuting, the conviction rate
has been 29%. After Septmeber 11, one would think it would be easier
for a jury to convict somebody accused of terrorism than somebody
accused of armed bank robbery or something. But, in fact, the
conviction rate is much lower. Case after case, they've lost. The
reason they've lost is this preventive paradigm.
going after people too early, before they've done anything, based on
suspicions, based on potential pods. One group of folks was arrested
for plotting to blow up the Sears Tower in Chicago. What they had done
to further the conspiracy was purchase combat boots and get horses.
That doesn't seem like a very effective way to blow up the Sears Tower,
so it was a hung jury.
[34:11] All of these things, I think,
lead to the conclusion that this is backfiring. From the perspective of
our security, it's backfiring. Finally, on the question of it
backfiring, it of course, the greatest harm that it's done in its
entirety is legitimacy all around the world.
[34:35] We invaded
a country, which was not attacking us falling into Bin Ladin's
propaganda that what we wanted to do was control the Middle East,
control Arab oil. The CIA before the invasion of Iraq predicted that if
we invade, it would dramatically boast Al Qaeda recruiting. It took the
country, which was not terrorist haven and created one.
Probably, the most graphical illustration of harm toll legitimacy
around the world is in England. In 2006, they did a poll of what
leaders in the world were the most dangerous and what political figures
in the world. And number one in the poll was Osama Bin Laden and number
two, ahead of the leaders of North Korea and Iran and all the rest of
the countries, which judge George W. Bush.
[35:30] And this is
the British public, not the Middle East, not you know other countries
that are not our allies. And again, if you look at the whole question
of torture, the army has revised its field manual to totally exclude
all of these aggressive assertive techniques, like water boarding,
which our Attorney General can't tell us if it's torture or not. And
Lt. General John Kemmings, the Army's Chief Staff for Intelligence said
when they revised this manual. He said we revised it, because no good
intelligence is going to come from these abuses practices.
Our own history and our own experience, the army's own experiences over
the last five years have told us that. And, yet to this day the CIA is
still permitted to use these methods and the government still defends
it. I guess the Bush Administration finally claim is that they're
haven't been any terrorist attacks, you know Tom Ridge, who is the
Director of Homeland Security. When he left, he had a big Press
Conference and he said "Under my watch, there have been no terrorist
attacks on our homeland" and then he went [knocked on wood].
Which lead the comedian, Jon Stewart on the Daily Show that night to
say, "Doesn't it give you great confidence in the government that they
say there's been no terrorist attacks and they knock on wood?" That
doesn't give me great optimism, great confidence, and I think it's
true. The fact that there hasn't been any terrorist attack is correct,
there haven't been any.
[37:15] But, there weren't terrorist
attacks between 1993 and 2001 on US soil. So, that's not the proof that
they think it is. So, what could you do, what could be an alternative
approach. The key to an alternative approach would be to separate
prevention and coercion. We've coercion for the rule of law, for when
somebody's done something wrong or another nation has attacked you and
take preventive measures, like, screening all the cargo that comes into
our ports, which could be done for a billion half dollars.
I think, four days of the Iraq war and which they still have not done
or a whole range of preventive, non coercive programs, which the
September 11th committee recommended. Several years after the committee
report, the committee did a report card on how they were doing with
respect to these measures and it's a report card that none of you would
have ever wanted to bring home, when you were a kid.
was a report card, which included five Fs, 12 Ds, eight Cs, two
incompletes, and one A minus. I'm not sure what the A minus was on, but
things like screening and checking cargo. Cargo at the ports, so that's
one thing. Second, you could use much more multi lateral diplomacy and
you know the Nuclear Non-Proliferation Treaty needs amendment. There's
been a lot of effort to do that this administration isn't doing it.
You know probably the greatest danger we face, from the terrorist
operation in terms of nuclear weapons is not terrorist who build bombs,
but steal them. And right now in Russia, there are over forty thousand
tons of unsecured Uranium that could be easily be stolen, in fact that
Chechnyan... a prankster, a student from Russia. Who got himself in
quite a bit of trouble, as a prank forged an idea of a Chechnyan
terrorist and walked right into one of these sites, which holds all
these nuclear materials and they let him right in.
2007, government office report said we're not doing enough to secure
these weapons. And finally, I think we should move from a situation
when 93% of our budget for foreign matters goes into the military and
only 7% goes into state department diplomacy. We should begin to
reverse that. We spend as much on the military as I think the figures,
as every other country in the world.
[40:19] And we could reduce
it by a substantial amount and still spend as much as the top six
countries in the world, which would still give us an enormous military.
Last, I just want to finish with a question. Well, the administration
says, what if there was, if we had a terrorist who we'd captured and we
knew they were going to explode a bomb. Or if there was a country that
we knew was making nuclear weapons and they were going to attack us,
shouldn't we be able to do something.
[40:53] Shouldn't we be
able to use these aggressive preventive measures? Shouldn't you want us
to use torture or invasion or preventive war and that kind of
situation? And, my first answer to that is and of course these are all
hypothetical scenarios. They never come up with a real one, they're all
hypothetical and the real one is there is 5000 people in the real
world. Five thousand people arrested and none of them are terrorist.
But, if the hypothetical really would occur, I think the answer is not
to work the rule of law.
[41:24] Not to modify the rule of law
and allow these exceptions, which then allows all of this, these
problems that we're now seeing. But, instead do what President
Jefferson, or Lincoln suggested we should do, that if in a rare unique
case that there was this kind of emergency. The President would be
forced to act openly and unconstitutionally to meet the emergency and
then seek ratification from the public and the congress and if they
thought he was acting correctly or she was acting correctly, they would
do so as they did with respect to Lincoln.
[42:00] They thought
not, they might treat him as a criminal or her as a criminal. But, it
would be open above board, acting unconstitutionally. Not to warp the
constitution and warp the rule of war to allow for this whole range of
coercive preventive measures.
[42:18] Thank you and we have some
time for questions, if you people have any questions on any of these
cases or anything I've talked about. Ruby, go.
[42:29] I was wondering. [off-mic question]
[42:41] Well, there was a huge amount that came out of it that was
valuable. There was a whole exposure of what Canada done, number one.
It was, you know they showed that not only the US, but Canada had
operated based on false information, that they'd operated wrongfully.
And I think, critically, it called for public apology.
This should happen in the United States. And we've testified before
Congress. There are Congressional committees that are looking into
this. The administration will never do it. But, if Congress required an
investigation, it could be done.
[43:27] It's not going to
happen, because even if Congress called for it, Bush would veto it. So,
it really shows the disconnect between what we're doing and being able
to accept some responsibility.
[43:46] You know, in this
conversation I had with this former legal advisor at the State
Department, even he admitted that with respect to... He supported the
whole policy. But, he said that when a mistake is made, we should
openly and honestly acknowledge the mistake.
[44:00] I think,
this administration is unwilling to acknowledge mistakes. And that's
the difference with Canada that they actually acknowledged it. So, I
think, it's quite possible to do that here. I mean, the September 11
Commission was a broad report. It took a lot of doing, but it won't
happen. It won't happen unless there's another administration.
[44:20] Yeah, that's why, by the way, we're going to court. That's why we're trying to do this in court.
[44:27] [off-mic question]
[44:36] Yeah, that's not elementary at all.
[44:37] I was just wondering.
[44:39] Sure, the State Secrets Doctrine is a doctrine which was
developed, I think, in the 50s by the Supreme Court, which said that
when you're suing the government or even a private party, and either a
key element to your claim or a defense requires the introduction of
secret information (classified information), the court should look at
that classified information, see if it's really necessary.
It was developed originally as an evidentiary principle, so that you
could exclude certain evidence as being secret. And it's been used
haphazardly over the last 20 years as an evidentiary principle. So,
like if you sued the government that involves an airplane accident.
It's a military plane. And they have some secret information that they
don't want to release. The information can be kept secret. They don't
have to release it.
[45:33] What's happened in the last three or
four years is that the doctrine has been used much more, not to keep
particular evidence out, but to dismiss a whole claim, because the
claim is based on that evidence itself.
[45:46] So, for example,
in the Al-Masry case, which involved the German citizen kidnapped in
Macedonia, they said the only way to prove that he was kidnapped by the
CIA was to show who kidnapped him, who gave the orders, how it was
done, and that'll expose the whole secrecy of the CIA. Therefore, you
have to dismiss the whole case.
[46:09] And there is now an
effort in Congress to amend or change the State Secret Doctrine. What
basically it does is it says to the government, "If you can operate in
secret, you can escape accountability." And I don't think that's a good
message to send to the government.
[46:26] I have a question about given the sort of jurisdictions that
[inaudible] State Secret Doctrine [inaudible] I don't have to release
[46:46] But, that's the minority of the [inaudible] . How many cases...
[46:50] No, that's a terrific point.
[46:52] How many strategies do you have to get this documentation?
[46:54] And it's a broader point on our whole legal struggle, which I
meant to make in the talk, but I was running out of time. There have
been over 100 people - I think it's close to 150 people who have been
subject to extraordinary rendition, this policy that we're all subject
And we know of Arar and of Al Masry and maybe a couple of others. All
of the rest have just disappeared. And you don't hear of them. Now,
there have been attempts to document what's going on.
There have been reporters who have done it: Jane Mayer, "The New
Yorker." There have been various efforts to document what's been going
on. But, it's been very, very difficult, because there's been a whole
veil of secrecy on these whole preventive measures that they've been
[47:41] So, we're litigating Arar as the tip of the
iceberg, really. And the trouble more generally, as lawyers, as public
interest lawyers in our legal strategy is that it's very hard to get at
the heart of the problem. OK?
[47:57] What you have to do is
litigate, because you have to try to win in court. You have to try to
litigate a reasonable claim. We could litigate a class action on behalf
of all the people who've been subject to extraordinary rendition. And
we'll get bounced out of court in five minutes.
[48:12] So, we
try to bring a claim that's going to survive a motion to dismiss, so
that we could really investigate in this one claim what's going on.
What it means is you get narrower and narrower. So, in our Arar case, I
gave you all the arguments we're making against the government.
It gets us narrower and narrower, because now we're saying, "Well,
Arar, he has a constitutional right, because he was here." Well, 99% of
the extraordinary renditions are not here. It just so happened that
Arar was here. And it happened that he was released, because he was
Canadian. If Arar had been a Syrian, sent to Syria to be tortured, you
could forget about it.
[48:51] In the Guantanamo case, at the
Mooson, the first Guantanamo argument, which involved the Rasul case,
we had a long discussion: What do you do if the judge asks you, "What
about some guy being held in Bagram Air Force Base in Afghanistan in
the same conditions as the Guantanamo people?"
[49:15] You could
give three answers. One, you could say, "Well, they're not covered,
because Guantanamo is under the exclusive jurisdiction of the United
States." But, if you say that, you've given away 95% of the people who
are being tortured and being detained. So, we don't want to say that.
You could say, "They're the same situation." At that point, you might
lose the Guantanamo case, because they might say, "Look, if we think
this going to affect everybody all around the world."
you could say, "That's not the problem you're facing here. Deal with
the problem you're facing here. And get to that problem later." We took
a combination of two and three, because we did say, also, that the
question is jurisdiction.
[50:06] See, the original Guantanamo
case was fought very narrowly at the Supreme Court, only on the
question of whether the court had jurisdiction. So, our argument was:
with respect to everything, the court has jurisdiction. Then, the
question is, "Do they survive on the merits?" And we don't have to
reach that yet.
[50:23] But, that's the constant dilemma you're
in as a public interest, at least, that I faced on them, because you
want to get at the broad problem. But, you are in an arena, in a forum,
which is quite limiting.
[50:37] And so the task really is: How
to bring a case that will survive in the courts of law, but yet be able
to used in the broader arena to push for an investigation of all of
[50:54] I guess, we have time for one or two more questions.
[50:58] Actually, we probably don't, because you can see people trying
to get in for their 11:30 class. But, what I wanted to say is, "That
[51:06] Well, thank you.
[51:07] And I know that we all really appreciated it. And the other
thing that Professor Lobel had wanted to have a chance to talk folks
about was a little bit more about the work of the Center For
Constitutional Rights. Their role and you know what that's like. And
what the opportunities there might be there. And so, he certainly has a
little bit more time.
[51:25] If you don't have class, you can talk in the hall or...
[51:25] I can go outside.
[51:26] Or across the...
[51:28] If you want to talk about the work of the Center and what we do
and how to get into public interest law, I'm happy to do that.
[51:33] So if that's a conversation you'd also like to continue, go
across the hall. We're adjourning right now. Please join me in thanking
Mr. Lobel. [applause]
[51:41] Thank you.
Transcription by CastingWords