Speech: Steve Shapiro, Dave Ellis Memorial Lecture: 1 Dec 2008
28 January 2009
Second Annual Dave Ellis Memorial Lecture, 1 December 2008
Steve Shapiro, Legal Director, ACLU: The evolving human rights landscape in the United States
Thank you to FLAC for inviting me. It is a real privilege and an honour to be here. You would think, having been in my post as Peter said for as long as I have, I would have learned the lesson that you should never admit anything to the person who is going to introduce you, but I continuously make that mistake.
As Peter said there is a long and very honoured tradition in the United States of pro bono public interest work. I'm happy to say there is an equally long tradition of paying public interest lawyers to do public interest work, I'm one of those fortunate few who had been able to make a paid career out of doing what I've always wanted to do from the moment that I decided that I wanted to go to law school.
I am very conscious of course that I am a visitor in your country and that we come from legal traditions that are in some ways similar and in some ways different. I was struck this morning, I have to say, by the difference when I opened up a copy of the Irish Times that had been left in front of my hotel room and saw a front page story that the paper had withdrawn an article that it had been planning to publish under threat of injunction. That is something I can say with confidence that could not and would not have happened in the United States. No paper I think would have withdrawn an article from publication under the circumstances, at least as I read them in the paper this morning, and the government would not have been able to obtain an injunction against publication had the government chosen to go to court.
That is a battle that we fought in the United States more than two decades ago around a historical document known as the Pentagon Papers and the legal tradition in the United States against so called prior restraints against publication is quite strong. That's not to say one system is better than the other, although I have my preferences, it is just to say that we come from different legal systems.
On the other hand there are obvious similarities and common traditions and I was struck today as well by the similarities. My wife is here with me as well, and we were walking around Dublin this morning and wandered into the Four Courts. I had never been inside an Irish courtroom before. I was inside the court for maybe ten minutes. I would say every lawyer I heard stand up was asking for an adjournment and I thought, well, courts work the same all over the world. It really is not different.
I thought what I would do today is talk a little bit about the ACLU, which really has played a unique role in American history, talk a little bit about my career as a public interest lawyer and talk a little bit obviously, since it is after all the title of the talk, about the evolving human rights landscape in the United States. We are at a particular historic moment in the United States with the most recent presidential election. The ACLU is and always has been a non-partisan organisation. We do not and never have taken a position on electoral politics. We do not even take a position on government appointments. As we like to say, we take positions on principles and policies, not on personalities. Having said that I think everybody in the United States would agree that the presidential election we have just witnessed was a truly transforming moment in United States history, and that for people who grew up in my generation, let alone for people who are older than I, the notion that a country that was really was born with slavery, has a distressing legacy of racial discrimination, has now elected a black president, is an incredible moment in the history of the country. I do not think the United States will ever be the same regardless of what Barack Obama does over the next four or eight years.
Having said that, it is from my point of view true that the United States is emerging from one of the most difficult periods in its history. Following the event of September 11, 2001, the Bush administration pursued a course of conduct that trampled on human rights, undermined security and damaged our nation's reputation throughout the world. A new administration is coming into office on January 20th, that was elected on a platform of change. What remains to be seen is what the change will look like, how quickly it will occur and what role NGOs, like the ACLU, will play in making it happen.
The ACLU was founded in 1920. It is the oldest, largest general human rights organisation in the United States. It is now 88 years old and it was founded 133 years after the United States Constitution was ratified. We have grown accustomed in the United States, some might say too accustomed, to the idea that individuals may seek relief from the courts when their rights are violated. In fact it took a long time for that idea to take hold in the United States. When the ACLU was founded in 1920 the Supreme Court had yet to strike down a single law as unconstitutional on free speech grounds; to the extent that there was any constitutional law in 1920 it favoured property rights over individual rights. Our Bill of Rights, which was added to the constitution in 1791, four years after the original constitution was ratified, was in 1920 largely unforced and its provisions remained largely aspirational.
The creation of the ACLU itself was precipitated by two events, both surrounding World War I. First, thousands of Americans were arrested, prosecuted, convicted and imprisoned for peacefully opposing US involvement in World War I. Those prosecutions led to the first significant free speech decisions by the United States Supreme Court in 1919, all of which by the way upheld the criminal convictions. That same year the US government also launched what are known in the United States as the infamous Palmer raids, rounding up and deporting thousands of immigrants based on alleged anarchist connections following an event, I hesitate to say this, in which a Molotov cocktail was thrown at the home of the United States Attorney General, Mitchell Palmer.
The history of the ACLU since 1920 parallels the development of modern constitutional law in the United States and the ACLU has played a major role in that development. We participate in more Supreme Court cases every year than any other private organisation.
When I first took over this job, first started supervising the ACLU's work in the United States Supreme Court, the United States Supreme Court was hearing about 140 cases a year. I don't know what the comparable figure is for the Irish Supreme Court and we of course do not have a Supreme Court and Constitutional Court, our Supreme Court is our Constitutional Court. That number has now gone down and the Supreme Court for the past several years has been hearing about 70 cases per year. Of those 70 cases per year the ACLU participates in roughly a quarter each year, so we file somewhere in the neighbourhood of 15 to 20 briefs each year in front of the United States Supreme Court. A varying number of those cases, it can go from 1 to 5 in any given year, are cases in which the ACLU is actually representing its own clients before the United States Supreme Court. The remaining briefs that we file, the 10 or 12 or 15 additional briefs that we file in the United States Supreme Court every year, we are filing as amicus curiae, as friend of the court briefs.
The ACLU is a membership organisation. We have more than 500,000 members across the United States and, as Peter said, we now have offices in every state. We have grown from an organisation that focused primarily on free speech issues, to an organisation that addresses the broad range of human rights. We have also gone from an organisation that focused primarily on litigation to a multi-faceted advocacy organisation. We now have approximately 200 lawyers working full time for the ACLU, thousands of other lawyers around the country who handle cases for the organisation on a volunteer basis, a legislative lobbying office in Washington, DC, and a sophisticated communications operation that uses both new and old media to get our message to policy makers and the public.
Finally, while still a domestic NGO, we have gone from an organisation that focused exclusively on US law and constitutional principles, to an organisation that is increasingly relying on international human rights norms to promote civil rights and civil liberties within the United States.
Litigation has been a powerful engine of social change in the United States. It has provided important protection for racial minorities, religious minorities, political minorities and other disadvantaged groups. Litigation also has its limits, however, especially when the goal of litigation is not merely to achieve justice for individual victims but to reform political institutions and transform cultural attitudes.
Our greatest successes have also led to some of our greatest frustrations. For example, 50 years ago the United States Supreme Court declared racial segregation in schools unconstitutional. Today schools in America remain as segregated as ever, but now that segregation is due to housing patterns rather than discriminatory legislation. Similarly 35 years after the Supreme Court upheld the right of woman to choose whether or not to terminate their pregnancies, abortion remains unavailable to millions of women across the United States and subject to burdensome regulation for millions of others.
The lessons we have learned from that experience, sometimes painfully and slowly, are that public interest litigation cannot be divorced from its larger political context. With rare exception, courts do not like to get too far ahead of political sentiment and when they do their decisions often produce a political backlash that imperils progress.
Even in a litigious society like the United States, the struggle for human rights is ultimately a political struggle. Litigation is one tool in that struggle, but it cannot and should not be the only one. There is much discussion in the United States about whether progressives have over relied on the courts. My own answer to that question is no. But we may be guilty on under relying on grassroots organising and coalition-building. If nothing else, last month's presidential election in the United States demonstrates the capacity to build a political movement from the ground up. It is hard to maintain change without popular support.
George Bush has become one of the least popular presidents in American history. His administration did not have to make human rights a casualty of the so-called War on Terror, but it chose to do so and we are all still living with the consequences. For the past seven and a half years, the ACLU and numerous other allies have fought against the Bush administration’s embrace of torture, rendition, racial and ethnic profiling, warrantless surveillance and the suppression of dissent. We have carried on that battle in the courts, in Congress, in town hall meetings, and in the media. The record is mixed. Detainees at Guantanamo bay have won the right to challenge their detention in federal court, but no one has yet been released as a result of a court order. Congress prohibited torture but then stood idly by when the president insisted on the CIA's right to use enhanced interrogation techniques.
A massive programme of unlawful surveillance was exposed by the media but then substantially ratified by Congress and efforts to challenge it in court have been effectively stalled by the administrations assertion of a state secrets privilege. Indeed the Bush administration has even taken the position that detainees at Guantanamo cannot publically discuss their own torture because methods of interrogation are classified secrets that cannot be revealed. Very few of us could have imagined a debate over these issues in the United States prior to 9/11. Many of the most controversial actions of the Bush administration have been undertaken on the basis of the president's alleged authority as Commander-in-Chief of the so-called War on Terror, often without any legislative authorisation and sometimes in the face of express legislative prohibition. Congress did not authorise Guantanamo, Congress did not authorise secret CIA prisons, Congress prohibited torture, but the Bush administration engaged in it nonetheless. Congress prohibited warrantless surveillance in the US and the Bush administration chose to ignore the legal prohibition.
In short, we have witnessed a legal struggle in the US not only over national security and human rights, but over the principle of separation of powers and divided government that is so basic to the US governmental structure. The US Supreme Court has played a surprisingly constructive role so far in this debate. I say surprising for two reasons: First, this is a conservative Supreme Court. Second, courts in the US have been hysterically reluctant to second guess executive action during war time and the Bush administration has tried very hard to describe its struggle against terrorism in all of its permutations as a war.
Nonetheless, there have been four cases that have gone to the United States Supreme Court post 9/11 and the Bush administration has lost all four. That is a result that I think very few people anticipated. And it is a result that I think is attributable to several factors. One has to do with a Supreme Court decision in 1944 called United States v Korematsu, in which the United States Supreme Court upheld the internment of 110,000 Japanese in the United States, many of them American citizens, on the theory that the judiciary was not in a position to second-guess the judgment of the then Roosevelt administration that those Japanese represented a potential security threat to the United States.
For the past 60 years the United States Supreme Court has looked back on that decision as one of the great blights on its record. In fact I dare say most legal scholars and I suspect most sitting members of the United States Supreme Court would now say that Korematsu was probably one of the two or three most regrettable decisions in United States Supreme Court history. And there was a strong, I believe, institutional imperative when these post 9/11 cases started to come to the Supreme Court not to repeat the mistake of Korematsu.
Secondly, I think the Supreme Court understood from the very beginning, when the first post 9/11 case came in 2004 that if this was a war, if we were in fact engaged in a war against terrorism, it was a very different war then we had ever fought and a very different war then we had considered. Because while it is true that every war is indeterminate in length, we certainly understood and understand how a traditional war ends. A war between nations ends when one side surrenders or an armistice is reached and each side's prisoners are then repatriated to their home country. Nobody believes that the struggle against terrorism is going to end with a surrender or an armistice. Indeed it is hard to believe that the struggle against terrorism is going to end in our lifetime.
If the definition of the struggle against terrorism is the definition that Donald Rumsfeld, our Secretary of Defence, gave early in the Bush administration --when asked how long the detainees would remain at Guantanamo, he said they will remain until there is no longer a terrorist group anywhere in the world to which they can return -- if that is your definition of the war against terrorism, then we are fighting not only an indeterminate war but an endless war, and I think the Supreme Court understood that from the very beginning. And the Justices understood that compromises that they might be prepared to make if they thought that the duration of the compromise was three years or four years or five years, were not compromises that they were prepared to make indefinitely and in perpetuity. And what might be in other circumstances regarded as a temporary trade off between civil liberties and national security, were instead in fact potentially permanent transformations in the American legal system that they were being asked to endorse. I think they were understandably and reluctantly and correctly reluctant to do that.
The third thing that I think happened is that the Bush administration made a fundamental tactical error. It's not normally my role to give the government advice on how to present its cases. But the government came to the United States Supreme Court and did not say to the United States Supreme Court: We understand that you as justices of the Supreme Court are the ultimate arbiters of our constitution, and our authority to act is subject to your interpretation of the constitution and we will abide by whatever interpretation of the constitution you announce, nonetheless these are very dangerous times and these are very complicated questions and unless we have made some horrible mistake you have to allow us some manoeuvring room here.
I don't know that the results of those cases would have been any different if that is the way the Bush administration had chosen to present their argument to the Supreme Court, but that is not what they said. They came into the United States Supreme Court and they said, in effect, this is none of your business. And if there is anything that judges do not like to be told is that something is none of their business. Because the immediate response it provokes of course is, "says who?", and I think that that is in part what we are seeing.
The first case that came to the United States Supreme Court post 9/11 was a case called Rasul v Bush. I was talking to somebody earlier today and was asked why has it taken so long for these Guantanamo cases to work their way to the United States Supreme Court through the US legal system. What seems to so much of the rest of the world to be a relatively clear moral and legal issue has been stalled in our judicial system for so long, why is that? And the answer is, it really hasn't. It is just there have been many chapters to this ongoing novel.
The first thing to understand is that American lawyers were not given access to the detainees at Guantanamo when Guantanamo was first opened. There was not only no access to the justice system there was no access to legal representation. There was no ability to get clients and so the initial habeas corpus petitions that were filed on behalf of Guantanamo detainees were filed by lawyers who were forced to go around the world to find relatives of people who were detained at Guantanamo and then to ask these relatives if they would trust American lawyers who they had never met and who after all were part of a legal system that had imprisoned their family members without charges or trial -- if they would trust these lawyers to represent them in an American court.
After they finally got authorisation to do so and the first generation of habeas corpus petitions were filed on behalf of Guantanamo detainees, they made their way to the Supreme Court in 2004, only two years after Guantanamo had opened. We have three levels to our federal system. To get through those three levels in two years is actually moving at a pretty brisk pace as the American legal system functions.
When that first case got to the United States Supreme Court, the United States Supreme Court responded by saying that the detainees at Guantanamo had a statutory right under US habeas corpus laws to challenge the legality of their detention in an American court. We have two bases for habeas corpus in the United States. We have a constitutional right to habeas corpus and we have a statutory right to habeas corpus and what the Justices of the United States Supreme Court did in that first case in 2004 is what judges do in the United States, and that is to say we are not going to reach the constitutional question if there is a non-constitutional ground on which we can decide the case. The non-constitutional ground is that Congress created habeas legislation, we think these Guantanamo detainees fall within the scope of that habeas legislation and therefore they can bring their cases into federal court. it was the first major defeat for Bush administration.
The second case that was decided at the same time in 2004 involved not a detainee being held at Guantanamo, but an American citizen captured in Afghanistan but held in the United States whose name was Yasser Hamdi. The government position was despite the fact that Hamdi was a US citizen, because he was captured on a battlefield abroad he was what the Bush administration has labelled an ‘enemy combatant’ very self consciously because of course it does not want to use the phrase ’prisoner of war‘ because that would acknowledge the application of the Geneva Conventions, which the Bush administration has resisted from the beginning.
It said Yasser Hamdi was an enemy combatant and as an enemy combatant he had a right it recognised to file a habeas petition in the United States court, he was after all an American citizen and they were willing to grant him that right, an American citizen being detained on US soil, but it said the only obligation the United States government had in response to the habeas petition filed by a United States citizen was to present some evidence - that it did not even have to share with Hamdi - that there was a legal basis for their assertion that he was in fact an enemy combatant as they had claimed. And the Supreme Court said, no, that cannot be enough. Habeas corpus guarantees you not only the right to come into court and be given a sanitised and truncated version of the government evidence against you without an opportunity to rebut it, habeas corpus if it is to serve its function guarantees you some basic rights to due process if the government is going to lock you up. Therefore at the very least as a United States citizen detained in the United States, Hamdi had the right to know the case against him and to present evidence in his own behalf. Case number 2.
In response to those two cases and more specifically in response to the first case, Rasul v Bush, which said the Guantanamo detainees had a habeas corpus right to come into the United States court and challenge the basis for the detention, Congress amended the habeas corpus law. Congress amended the law to say, as a matter of statutory construction, habeas corpus does not extend to detainees being held at Guantanamo. And make no mistake about it, the government was very explicit about this. The reason the government chose to hold these detainees at Guantanamo Bay, was because it thought it had found a place that was beyond the jurisdiction of the United States courts because Guantanamo is not technically part of the sovereign United States, it is still owned by Cuba, but it is a place in which Cuban law does not apply.
So it felt that it had literally found a place in the world that it could hold these detainees where no law and no legal system reached. That's why Guantanamo was chosen. So Congress in 2005 amended the law and said the Supreme Court got it wrong, they misunderstood what our statute means, habeas corpus does not apply to Guantanamo Bay. The next case reached the Supreme Court in 2006. It says several things, but of significance here, the Supreme Court applied another maxim of judicial construction in the United States, which is to say that Statutes are to be construed if at all possible so that they will be constitutional as opposed to unconstitutional. And it construed the 2005 statute to withdraw the right of habeas corpus only prospectively, not retroactively and because the plaintiff before the court, the habeas petitioner before the court in 2006 had filed this habeas petition before the law was amended, they said the withdrawal of habeas jurisdiction does not apply to you, you can go forward with your case.
Congress then responded to that decision by amending the law again and saying let us make it perfectly clear, when we said we were withdrawing habeas jurisdiction we meant we were withdrawing it for everybody at Guantanamo regardless of when they filed their habeas petition.
The fourth and final case then reached the Supreme Court and in this fourth and final case the habeas petitioner had no other option but now to argue that I have a right to file a habeas petition and challenge the basis for my detention that derives from the constitution itself. It's not dependent upon any statutory authorisation by Congress, it derives from the constitution itself. The Bush administration came in and said the constitution does not apply at Guantanamo. The constitution does not apply extraterritorially and Guantanamo is not part of the territory of the United States. The Supreme Court rejected that argument, the Supreme Court said the United States exercises de facto sovereignty over Guantanamo, whatever the precise de jure status of that sovereignty may be, and because there is no other judicial system to which the Guantanamo detainees can apply, they must be allowed to petition the United States courts, if they are being held by United States authorities, to challenge the basis of their detention.
That's an enormously important holding from the United States Supreme Court. It's an enormously important re affirmation of the rule of law, but it is also important to understand how limited that ruling is. It said that habeas applies to Guantanamo. It did not say anything about whether habeas applies to detainees being held by the United States anywhere in the world other than Guantanamo. And just to give you a sense of comparison, there are now about 250 detainees being held at Guantanamo bay by the United States government. There are at last count about 17,000 people being held in United States detention in Iraq and thousands of others being held in United States detention in Afghanistan, and an untold number of other people being held by the United States in secret prisons around the world. The Supreme Court has yet to say anything about whether they have a right, if lawyers can find them, to come into court and challenge the basis of their detention.
The second thing to be said about the Supreme Court's decision is that the Supreme Court decided the first of what I think are three critical legal questions surrounding the struggle against terrorism in the United States and in some ways it was the easiest because it was a process question.
Question number 1 is: If the United States government is holding you as an alleged terrorist in its battle against terrorism, do you have a right to come into court and challenge the basis of that detention? We know the answer at least for people in the United States and in Guantanamo Bay now is: Yes. But the next two questions in the sequence are questions that the Supreme Court has not yet answered but will have to answer.
The second question is: If this is a war against terror, who is a solider and who is a criminal? Who has to be prosecuted within the criminal justice system and who may be prosecuted or held under the laws of war. The ACLU currently has a case pending in the United States Supreme Court that the Court has not yet decided whether or not to hear. I was waiting this morning to find out whether or not they had agreed to hear the case and they deferred the decision for another week. But it involves a man who was arrested in Illinois, near Chicago. The government believed he was a terrorist. It charged him criminally, not with terrorist related activities, but with a variety of other offences, mostly related to immigration fraud. And then a month before the case was due to go to trial, the government announced that it was dropping all criminal charges him, that the president had signed an order designating him as an enemy combatant, that he had been transferred from civil jurisdiction to military jurisdiction and that he had been placed on a military plane, brought down to a military prison in South Carolina where he would be held until further notice. He in fact was held for the next 18 months incommunicado. The criminal lawyers who had been representing him for a year in his criminal case were not allowed to see him. His family was not allowed to contact him.
Ultimately the lawyers did get in to see him. They filed a habeas petition on his behalf and their position - our position, because those lawyers are now working at the ACLU - is that if the government has evidence against this man they need to try him in a traditional criminal court. And that the government cannot convert every alleged terrorist offence into a military crime and hold people indefinitely in the military system. But the case raises the issue of where is that dividing line between military authority and civilian authority.
And then the third question that the court has yet to answer is for those people who are being held as enemy combatants, what rules apply? Are they prisoners of war, are they not prisoners of war, how long can they be held?What does the government have to show in order to establish that they are enemy combatants? What access does the detainee have to evidence in the government's possession, or evidence that might in fact be helpful to the detainee?
It's the substantive question: Now we're in court, what are we deciding and how are we going to decide it? Those questions remain to be resolved. So, we are really at the very early stages of the development of the legal framework that will guide us through this crisis. And I do not deny for a moment that there is a crisis out there, there is a serious problem out there; there are terrorists out there, they struck again in Mumbai this week; there are bad people that want to do bad things, and kill a lot of innocent people. I want my government to protect me against that terrorist threat. But I don't want my government to do it by sacrificing fundamental human rights, which I do not think advances the cause of security and I am absolutely convinced denigrates the principle of universal human rights.
Now, let me just tell one other story about one of our cases, because I think it's a revealing case. While the Supreme Court has had these four cases, all of which involve who gets into court —do people have the right to get in court if they are being held in the war on terror? -- the lower courts in many ways have been much less open to substantive challenges to the Government's authority and have used a variety of court closing judicial doctrines to bar any serious judicial inquiry into government policies that I think could not withstand serious judicial inquiries. We represent a man named Khaled El Masri. Khaled El Masri has become a poster child for the policy of extraordinary rendition. And ‘extraordinary rendition’ of course is an Orwellian term because what extraordinary rendition refers to is a deliberate and systematic government policy of kidnapping and enforced disappearances. That's what we called it when it happened in South America in the '70s and '80s, that's what it is when our government does it as well.
Khaled El Masri was raised in Lebanon. In his early 20s he moved from Lebanon to Germany. In Germany he married a German citizen, they had four children, I believe, all of whom were German citizens. And El Masri himself became a German citizen. He had been living in Germany for 15 years when he decided he wanted to take a vacation. He got on a bus in Ulm, Germany, where he lived, to go vacation in Macedonia. He crossed several international borders going from Germany to Macedonia, all without incident. He got to the Macedonian border and he was taken off the bus by Macedonian intelligence agents. We do not know to this day whether they were acting at the behest of the CIA or not. But in any event, they took El Masri off the bus, they didn't take him to a police station, they didn't take him to a prison; they took him to a hotel room. Nobody had access to him and he appeared on no official records. They questioned him for 15 days in that hotel room.
At the end of that 15 day period, the Macedonians took El Masri, put him in a car, drove him to a private airport in Macedonia where he was met by a CIA rendition team dressed in black with black ski caps covering their faces. They took El Masri, stripped him of all of his clothes, administered an enema, put a diaper on him, put him on a CIA charter flight spread eagled to the plane for the duration of the flight. They flew him from Macedonia to Bagdad to Kabul, Afghanistan.
When he arrived in Kabul, Afghanistan they did not bring him to a US military base, they did not bring him to an Afghan prison, they brought him to a CIA black site, where he was then held for the next four months and interrogated by the CIA.
Within a month after he had arrived in Kabul, Afghanistan, the CIA clearly knew they had the wrong person. It was a case of mistaken identity. And as I say every time I tell the story, I hesitate here because if they had the right guy, if they had a terrorist, the proper response was to bring that person to justice, not to kidnap him, hold him incommunicado and bring him to a black site. But that's what they did. They knew they had the wrong person. And instead of simply apologising and releasing him, they treated it as a public relations problem. It was a special public relations problem because this was a German citizen, a citizen of a US ally.
It took them three more months to figure out what to do with what had become a public relations problem for the United States Government. And we have every reason to believe that the fact that they had the wrong person in detention was communicated up the chain of command, we believe, to the Director of the CIA, who was George Tenet at the time. And finally, at the end of four months in captivity in Kabul, what the CIA decided to do is, they hooded him again, they put him back on a CIA plane, and this time they flew him not back to Macedonia, where he had been picked up; not to Germany, where he lived; but they flew him to Albania, I presume because Albania is one of the few countries that would allow a CIA plane to land under those circumstances.
He got to Albania and they took him off the plane. He was still hooded. They put him in a car. They drove him for an hour or two into the Albanian countryside. They then opened the door of the car, took the hood off his head and said, start walking and don't turn around. He assumed he was about to be shot. He was not shot. Instead what happened was, the car turned around, sped off and left him on this Albanian mountainside, having no idea where in the world he was, no identification, no money. He walked for a mile or two and was picked up by the Albanian police. At this point he really looked terrible, he'd gone on a hunger strike, he'd lost 40 pounds, he's gaunt, he's unshaven. The Albanian police say to him, who are you and what are you doing here. He says, my name is Khaled El Masri, I'm a German citizen, I want to go home.
The Albanians call the German Embassy. They say, who is this man? And the Germans say, he is a German citizen, we have no reason to believe he did anything wrong, send him home. So, he gets put on a plane, he goes back to Ulm, Germany, he gets to his house, his family is now gone. It turns out his family is gone because his wife had heard nothing from him in five months, assumed that he was killed, disappeared, or had abandoned the family. In any event, she was gone. She had these young children, she had gone to live with, I believe, her parents, it might have been her in laws, in order to have assistance raising the children.
The family eventually gets reunited. He goes to a lawyer in Germany. The lawyer in Germany hears this story and starts to publicise it in Germany. It ultimately becomes a big deal in Germany, there is a German parliamentary investigation that is launched because he is a German citizen that corroborates his story. There is an investigation by the Council of Europe of his case that corroborates his story. There are investigative reports in the New York Times and the Washington Post that corroborate his story.
And at some point his German lawyer comes to us and says, will you represent him in an American court. Will you take his case. And we say yes. We file a law suit on his behalf against the Director of the CIA and several of the charter plane companies that we believed had helped transport him around Europe.
The government responds to the law suit not by denying the allegations, not by admitting the allegations, and I will say in what is, you know, in some ways every lawyer's dream, the day the case is filed, by pure accident, Condoleezza Rice, then the Secretary of State, is in Germany visiting President Merkel, who has just become president of Germany. And Merkel brings up El Masri's case. She emerges from her first meeting with Condoleezza Rice and says to the German people, I raised the case of the Khaled El Masri, Secretary of State Rice apologised and said she would look into it. Condoleezza Rice later denied having said that. But that's the same day we filed the law suit. We filed the law suit and we laid out the story as I have just told it to you.
And the Government's response was not to say, we did it, we're sorry. The Government submitted a paper that said, this case must be dismissed. And it must be dismissed because while we neither confirm nor deny that we did anything, if we did anything it was part of a covert intelligence operation and covert intelligence operations are by definition secret and we cannot talk about them. And since we cannot talk about them, we cannot defend ourselves in court. And since we cannot defend ourselves in court, the only appropriate response is to throw the case out of court.
We received this response from the Government and we are pretty good and pretty sophisticated lawyers, I like to think. So we filed a response to their response that I'd like to summarise by saying, you’ve got to be kidding. And we attached to our response two inches thick of documents. The German parliamentary investigation, the investigation from the Council of Europe, stories from newspapers all over Europe and United States, and we said, how can it possibly be? How can it possibly be that the entire world is talking about this case and the one place we cannot talk about it is in the United States court of law. That can't be the right answer.
A week later we were dismissed. We appealed, we lost the appeal. We asked the Supreme Court to review the case and the Supreme Court declined to review the case.
We had a similar experience when we sued our National Security Agency, one of our top secret agencies, because everybody now agrees the Bush administration launched a massive programme of electronic surveillance in violation of a clear set of rules that Congress had enacted in 1978 that required judicial supervision of even intelligence wiretaps. The Bush administration decided they were simply going to ignore the law. We went into court and challenged that programme. And we challenged it on behalf of a series of lawyers, journalists, human rights advocates, all of whom were engaged in reporting, were advocating or studying problems connected to the Middle East and terrorism, and therefore, all of whom had a plausible basis for believing that they were caught up in this very wide dragnet of unlawful surveillance.
The Government's response and ultimately the court's response to that law suit was to say, we will not tell you whether any of your clients were the subject of surveillance because the targets of surveillance are a state secret. But the only people who can challenge a surveillance programme are people who in fact were subject to the surveillance. And since you cannot know for sure and we will not tell you whether you were the subject of surveillance, there is nobody that has legal standing to challenge the programme in court. The Government won and that case was dismissed.
And so there have been legal victories. The Supreme Court in particular, I think, has played an historic role in saying there are limits, there is a rule of law. People do not get locked up without charges or trial and without access to courts. But beyond that, the struggle to get into court and litigate the merits of many of these anti terrorism policies, which I think could not withstand serious judicial inquiry, has been a very, very difficult struggle.
As we head into the Obama administration, what I think is going to be the critical legal issue that we are going to confront as a country and confront very quickly is what happens if and when, and I think it is when not if, President Obama closes Guantanamo, as he has said he will. And I think that will happen fairly early in his administration. The public debate that has already begun in the United States is, what then do we do with the people who are now being held in Guantanamo? Of those 250 people, there are approximately 20 who have been charged with war crimes. And those 20 are being prosecuted in front of a specially created system of military commissions that is itself in my view unlawful and unconstitutional, because it doesn't meet basic due process standards. But at least they are charged and are facing trial.
The other 225, 230 are being held without charges and the Government, for most of them, has no intention of ever trying them. So the question is, when you close Guantanamo, what do you do with those people? And increasingly what we are beginning to hear in the United States is that the answer to that problem is to create a system of preventive detention for those people who we cannot return home, or chose not to return home because we believe they may be dangerous, and yet for one reason or another we cannot try. The answer about what to do with those people is, place them in a system of preventive detention.
Now, you have to understand that the United States, unlike many other countries around the world, unlike the UK, for example, has never had a system of preventive detention. But beyond that, the kind of preventive detention that people are now beginning to discuss in the United States is very different than the debate over 28 or 42 days in the UK. Because the kind of preventive detention we are now beginning to discuss in the United States is indefinite preventive detention, in which the detention will be periodically reviewed by a judge, subject to standards that have yet to be articulated, and pursuant to procedures that have not yet been identified. If the Government satisfies its burden of proof, whatever it may be, every six months let us say, then it can keep people in detention for perpetuity as long as every six months it goes back to a judge and gets a judge to sign off.
And when you say to people, “Why do you need to do that?”, you typically get two answers. Answer number one is, well, there are people in Guantanamo and elsewhere who are truly dangerous but have not yet committed a prosecutable crime. Okay. That in fact is a very hard explanation for me to credit if for no other reasons than the United States antiterrorism laws are so broad and so elastic that anybody who has gotten to within several hundred yards of a terrorist can be charged and indicted, either under our conspiracy laws or our material support laws. The problem with our terrorism laws is not that they don't reach far enough, is that they reach too far.
The second explanation you then get is, well, we can't prosecute these people in a court of law because in order to prosecute them in a court of law we will have to reveal classified evidence that should not be revealed.
And the short answer to that is, this problem is not unique to terrorism, it's not unique to Guantanamo, it's not even unique to 9/11 and it is a problem that the United States has by and large solved. We, for several decades, have had a law in the United States called the Classified Information Protection Act. It provides a set of procedures for the Government to follow when it needs to use classified information in order to convict. There have been literally scores of prosecutions and convictions for terrorism and non terrorism related offences, both before 9/11 and after 9/11, in which the Government's case was built in part on classified evidence. The procedures have been worked out -- not a single case, not a single one of those cases has had to be dismissed because classified information was essential to the defence, and the judge determined that the case couldn't go forward without revealing it and it couldn't be revealed and therefore dismissed the case. That hasn't happened once.
And so when you start to probe, and you say well, the problem is not that our criminal laws don't reach far enough and the problem is not that we can't prosecute people without revealing classified information. What really is the problem that is driving people to a system of preventive detention? And the answer that I come to is, the real reason that we can't prosecute some people who are being held in Guantanamo and elsewhere is because we have tortured them. And evidence obtained through torture is not going to be admissible in a criminal court. To which I have two responses. Number one is, the answer to the problem of torture cannot be to create a system of diluted due process in order to enable us to prosecute people we have tortured. Because that is merely compounding one error with a second error. And my second point is that when people propose a system of preventive detention, which presumably will have less procedural protections than a traditional trial, what they rarely, if ever, identify are which aspects of a traditional criminal trial, which components of due process they are prepared to do away with, which ones they think are unnecessary but still justify the potentially indefinite detention of somebody who has never been charged with a crime.
That is the debate we are about to have in the United States. The position of the ACLU, my own personal position, is quite clear on this, that if we believe people are engaged in terrorist activities, we should charge and try them, and if we convict them we should imprison them and we can imprison them for lengthy periods of time but we should do it under the rules that we have established for our criminal justice system and that our constitutional notions of due process require. And if we cannot, we should be releasing people and sending people home.
I certainly believe, that the Obama administration comes into office with, I think, a very different attitude towards human rights than the Bush administration; a very different attitude towards the rule of law than the Bush administration; a very different understanding of divided government and separation of powers than the Bush administration.
The ACLU has been around now through 15 presidencies. Barack Obama will be our sixteenth. Some presidential administrations have been more difficult than others. Some have created greater human rights problems than others. But there has been no presidential administration in which there have not been any human rights issues. And while I am hopeful heading into the Obama administration, I am not naive enough to believe that all the human rights problems that have arisen post 9/11 in the United States, and that are unrelated to 9/11 are going to magically disappear on January 20th, when Barack Obama takes the oath of office.
And so, part of the message that I bring to you from the United States, recognising that we have different legal systems, we have different cultures, we've had different political experiences, we have different political systems, is that the role of human rights advocacy and human rights advocates is indispensable throughout the world. That the meaning of universal human rights is that they apply universally. And that human rights have no meaning unless they are enforced. They are not enforced on their own.
The ACLU developed a slogan several years back. I probably shouldn't admit that it's, I guess, a marketing slogan, but if you look at the ACLU logo now it say, "The ACLU -- Because freedom can't defend itself". I honestly believe that. So, the ACLU is committed to continuing the work it has done for the last 88 years. We welcome the opportunity to not only collaborate but learn from human rights colleagues around the world like FLAC. I applaud what FLAC is doing. If people can't get into court, if people do not have access to justice, there is no justice. And we will continue that struggle as long as we need to.
The founder of the ACLU was a man named Roger Baldwin. He started the organisation in 1920. I joined the ACLU in 1976 and Roger Baldwin was still there. He was no longer director general, he had moved on to some emeritus position but he was still around, and he was a charismatic and inspiring speaker. I heard him speak maybe three times before he died after I had joined the organisation. By then he was in his 90s. He had this deep, gravelly voice. And each time I heard him speak he would end the same way. He would quote Robert Louis Stephenson, a Scot I believe. He would say: ”As Robert Louis Stephenson used to say, ’It is better to travel hopefully than to arrive.’" And he would say: ”At the age of 90 I am still travelling hopefully and so is the ACLU.”
So, I leave you with that message of hope. I remain hopeful, I hope you remain hopeful, and I am convinced that through our collective efforts the world can and will be a better place for everyone. So thank you very much.