HJC Hearing on Constitutional Rights of U.S. Citizens in the War on Terror

By Ritika Singh
Tuesday, May 21, 2013, 2:12 PM

Ben and Bobby will be testifying in front of the House Judiciary Committee on "Protecting U.S. Citizens' Constitutional Rights During the War on Terror" at 10 am tomorrow at 2141 Rayburn House Office Building.  The two other witnesses will be Steven A. Engel, partner at Dechert and former Deputy Assistant Attorney General, and Mary Ellen O'Connell of Notre Dame Law School. Their testimonies are as follows:

Steven A. Engel's begins:

Chairman Goodlatte, Ranking Member Conyers, and the Members of the Committee, thank you for the invitation to testify today on protecting U.S. citizens’ constitutional rights during the War on Terror.

For more than ten years now, the United States has been engaged in an armed conflict against Al Qaeda, the Taliban, and associated forces. That conflict, while centered outside our borders, has not been limited to external threats. To the contrary, on September 11th, Al Qaeda proved that it had the military capability to inflict an attack on our homeland as devastating as anything that our Nation had experienced before.

While Al Qaeda clearly demonstrated that it represented a military threat to our country, the group and its associated forces are quite different from prior enemies. Al Qaeda is not a nation state, and its forces neither wear uniforms nor control territory in a conventional sense. Rather, Al Qaeda operates outside of, or in the shadows of, the laws of nation states, by exploiting power vacuums in failed states, making opportunistic alliances where available, and operating covertly within nations. As time has passed, the nature of Al Qaeda itself has changed, as the group has shifted, fragmented, and associated with regional groups outside of the Afghanistan and Pakistan region.

The War on Terror, as this armed conflict has been described, is thus a very different kind of conflict from ones we have seen in the past. And the nature of that conflict—with an ill-defined enemy, operating covertly and opportunistically—has itself raised special issues when it comes to defining the laws of war that govern this conflicts. The traditional laws of war are premised upon a conventional armed conflict or, in some cases, civil wars. The established legal framework provides clear answers to who may be detained, how they must be treated, and where they should be prosecuted. None of these questions is self-evident when it comes to the War on Terror.

The War on Terror poses special issues as well when it comes to the rights secured to United States citizens under our Constitution. With the nature of the enemy less defined, and the enemy set on attacking our homeland, the War on Terror requires that the Government work to detect and stop terrorist plots at home. The means by which we seek to stop such threats, and the rights of those, including American citizens, detained on our soil pose special challenges to ensure that we protect the constitutional rights of Americans at the same time as we protect their lives.

Mary Ellen O'Connell's begins:

Members of Congress, ladies and gentlemen, thank you for this opportunity to help clarify the law regarding fundamental rights in the war on terror. The basic Constitutional and human rights to life, to liberty, and to a fair trial have all been implicated by America’s response to 9/11. My focus today is on the first of these basic rights, the right to life and on the use of armed unmanned aerial vehicles, known as drones, to launch missile attacks and to drop bombs far from the field of battle.

I am Professor Mary Ellen O’Connell of the University of Notre Dame. I hold degrees in history, international relations, and law from institutions including Northwestern University, Columbia, the London School of Economics, and Cambridge University. I have also served as a civilian employee of the United States Department of  Defense, teaching at the George C. Marshall Center in Southern Germany for a number of years. I have taught, written, and chaired committees on the subject of this hearing for almost 25 years. Work in this area requires extensive education not just in U.S. law but also in the international law on the use of force, international human rights law and international law generally. Unfortunately, very few persons have these qualifications in the United States today. Even fewer are able to speak from the privileged position of an independent scholar.

I hold such a position thanks in large part to the longtime president of the University of Notre Dame, Father Theodore Hesburgh. I find it auspicious that I will present testimony today, on the very day that Father Ted will be honored at a reception this afternoon in the Rayburn Room. Father Ted has been a pillar of civil and human rights for well over a half century, and I have been honored to use him as a sounding board myself on complex issues implicating law, morality and the efficient use of military force, including drone use.

The Right to Life

All human beings possess the right to life, which is protected in the Fifth Amendment to the United States Constitution: “No person shall be … deprived of life, liberty, or property, without due process of law.” It is also protected in Article 6 to the International Civil and Political Rights Covenant (ICCPR) to which the United States is a party: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” As both the Fifth Amendment and Article 6 indicate, some deprivation of life may be justified under the law. The justifications are found in two different legal categories: one category pertains to the ordinary situation of peacetime and the other to the exceptional and extraordinary situation of war or armed conflict.

Ben and Bobby's begins:

Thank you, Chairman Goodlatte, Ranking Member Conyers, and members of the committee for this opportunity to give our views on the subject of military detention under the laws of war of terrorist suspects arrested within the United States.

This written statement represents the views of Robert Chesney, Professor of Law at the University of Texas School of Law and Non-Resident Senior Fellow at the Brookings Institution, and Benjamin Wittes, Senior Fellow at the Brookings Institution.

We would like to make four major points today, points which lead to a single recommendation:

First, a review of the relevant case law suggests that the Supreme Court as currently aligned would probably not approve the use of long-term military detention under color of the Authorization for the Use of Military force (AUMF) with respect to a United States citizen detainee who was arrested by law enforcement authorities within the United States. Whether it would approve detention for a non-citizen captured within the United States is also in doubt, though the matter is less clear in that setting.

Second, current criminal justice authorities provide ample grounds for ensuring the incapacitation of such persons in most foreseeable instances. There is little if anything to be gained for the executive branch in gambling with the domestic military detention option, which would carry significant litigation risk and guarantee divisive political friction.

Third, although the Bush administration did use military detention for domestic captures in two instances—one involving a citizen, another a non-citizen—it typically relied on the criminal justice system instead. Indeed, in the case of the citizen detainee, it eventually backed away in the face of a looming judicial reversal. The Obama administration has stayed this course, taking similar action with respect to the domestic non-citizen detainee in military custody. Today it is highly unlikely that an administration of either party would attempt to use these authorities again.

Fourth, because these options nonetheless have not formally been foreclosed in law, there are periodic surges of interest in them by both political supporters and opponents. Supporters demand their use in cases like that of the Boston Marathon bombing. Opponents, meanwhile, have gone to court to seek injunctive relief against law of war detention authorities based on speculative fears of military detentions that will not take place.  All of this is disruptive, undesirable, and unnecessary.

Based on these observations, we therefore recommend that Congress codify in statute today’s practical status quo. That is, Congress should state explicitly that detention authority under the AUMF and the NDAA does not extend to any persons captured within the territory of the United States. We provide a more expansive discussion of these points below, in two parts.  The first part outlines the legal context against which these issues arise today.  The second discusses the practical and policy consequences of leaving the current status quo uncodified in statute and explains our recommendation for legislation.