Combating terrorism in a democracy: The American experience

Editor’s note: The following remarks were given by Mark L. Wolf, Senior United States District Judge for the District of Massachusetts, in Istanbul, Turkey, on October 30, 2013, at an international symposium on “The Balance Between Freedom in Security in Fighting Terrorism,” organized by the Justice Academy of Turkey.

I commend the Justice Academy of Turkey for organizing this international symposium on “the balance between freedom and security in fighting against terrorism.” In his opening address Dean Hakan Hakeri expressed surprise that, in our conversation last evening, I was aware of the broad definition of terrorism in Turkish law. It should not, however, be surprising that Americans generally are knowledgeable about Turkey and, particularly, that an American judge is familiar with important legal issues in Turkey.

Turkey is a vital friend and ally of the United States. However, issues concerning combating terrorism complicate, if not challenge, our special relationship.

Terrorism is broadly defined in Turkish law.^[i] One third of the 38,000 terrorism prosecutions in the world since 9/11 have been in Turkey.^[ii] In part because much speech was, until recently, prosecutable as terrorist propaganda,^[iii] Turkey has more journalists in jail than any other country in the world.^[iv] I understand that earlier in 2013 Turkey revised its anti-terrorism statutes to permit more freedom of expression by making criminal only speech that poses a “clear and an imminent danger to public order.”^[v] That is encouraging. However, international experts have reported that controversial cases, such as Sledgehammer and Ergonekon, appear to have involved some fabricated evidence.^[vi] And Turkey has more cases in the European Court of Human Rights than any country except Russia.^[vii]

Therefore, I am pleased and privileged both to have this opportunity to speak here about the United States’ experience in battling terror, and to learn from the distinguished participants in this symposium from Turkey and 36 other countries.

In the United States it has long been said that a democracy is “a government of laws and not of men.”^[viii] However, as United States Attorney General Edward H. Levi, for whom I worked, noted in 1975, “[i]f we are to have a government of laws and not men, then it particularly takes dedicated men and women to accomplish this through their zeal and determination, and also their concern for fairness and impartiality.”^[ix]

Protected by two oceans, the United States does not have a history of combating foreign foes or terrorists on its own territory. Its commitment to the rule of law has nevertheless been tested whenever the nation has felt threatened. As I will explain, the historic leaders of the United States now most respected have been dedicated to assuring the humane and fair administration of justice in dangerous times.

The terrorist attacks on September 11, 2001 have challenged the rule of law and civil liberties in the United States, as terrorism does in every democracy. In 2004, I gave a talk at Harvard reflecting on how the United States was responding to that challenge.^[x]

I began my talk by discussing my first visit to Turkey. I said:

In 1991, at the request of the American Ambassador, I helped conduct a human rights conference in Turkey for members of the Turkish Parliament. Then, as now, Turkey was an important ally of the United States. However, the Bar of the City of New York had recently issued a report demonstrating that the Turkish government had been: arresting people for “thought crimes,” particularly expressing sympathy for the Kurds; keeping them in incommunicado detention for eighteen days; torturing them; and then bringing them before a judge and a doctor, who each certified that they had not been not tortured.

On the first day, I spoke to the Parliamentarians about the evolution of our First Amendment right to freedom of speech, our Fourth Amendment right to be free of unreasonable searches and seizures, and our Fifth Amendment right to due process. On the second morning at breakfast, the Parliamentarians were very animated. They told me that they had been watching CNN and just seen [a man named] Rodney King being beaten by the Los Angeles police.

I reminded them that I had not said that the United States was distinguished because it is perfect. Rather, I said the United States, like every other country, is imperfect. However, it is distinguished by its commitment to the rule of law. I urged the Parliamentarians to watch what happened because I was confident that they would see that the Rodney King matter would be dealt with seriously and properly in the courts of the United States.^[xi]

Since 9/11 [I said in 2004], I have often wondered what I would tell those Turkish Parliamentarians today. American citizens Yaser Hamdi and Jose Padilla have been held for years in incommunicado detention in the United States. In addition, the President has been advised by his attorneys that he has the inherent authority to authorize torture despite Geneva Conventions and other United States laws that prohibit it.^[xii]

Based on Lord Acton’s axiom that “power corrupts and absolute power corrupts absolutely,”^[xiii] the Constitution of the United States creates a government in which the Executive, Legislative, and Judicial powers are allocated to three separate branches of government. The media is widely regarded as the “Fourth Estate,” as freedom of the press is protected by the First Amendment to the Constitution, because we understand such freedom is essential to having the well-informed citizens who are the foundation of any democracy.

In my Harvard talk I criticized the Attorney General of the United States, John Ashcroft, who asserted that those in Congress, the courts, and the media who expressed concerns about lost liberty were unpatriotically giving “ammunition to . . . [the United States'] enemies and pause to . . . [our] friends.”^[xiv] As I noted, this attitude was completely contrary to what Judge Learned Hand correctly characterized in the middle of World War II as America’s “Spirit of Liberty,” “the spirit which is not too sure that it is right.”^[xv]

In my talk, I also noted the extraordinary efforts of the President to keep Congress and the courts from performing their constitutional duties, and to frustrate the media as well.

With regard to the courts, the President took the position that judges did not have the power to limit his authority to conduct war against terrorists. Among other things, the President had asserted, upon advice of government lawyers, that: extreme techniques such as waterboarding did not constitute torture prohibited by the Geneva Conventions and United States statutes; American citizens characterized by the President as terrorists could be detained indefinitely without any judicial review; United States statutes and treaties did not apply to detainees at Guantanamo, and American courts had no authority to apply those laws.

Such responses to 9/11 will seem familiar to people from many countries with longer histories of combating terrorist threats to their very existence – a threat the United States did not, and does not now, face. However, in 2004, the United States Supreme Court rejected the contentions that a United States citizen accused of being a terrorist could be detained without judicial review^[xvi] and that United States courts did not have the authority to decide if the detention of aliens at Guantanamo was lawful.^[xvii]

The power of an independent and impartial judiciary to review and restrain executive action in a time of terror is very important. As I noted at Harvard in 2004, when they were tested in court after 9/11 many of the government’s most sensational terrorism charges could not be proven. For example:

A federal judge in Michigan vacated the conviction of two men for supporting terrorism because the government admitted that it had unlawfully withheld exculpatory evidence.

An Oregon attorney was released after it was determined that the Federal Bureau of Investigation had erroneously matched his fingerprints with those found on a bag connected with the Madrid bombing.

A Saudi graduate student in Idaho was acquitted of charges that he supported terrorism because he ran websites for Islamic groups advocating holy war in Israel and Chechnya.

Two Muslim men arrested in upstate New York in an undercover operation involving the sale of weapons to alleged terrorists were released after the Justice Department admitted that it had mistranslated some key evidence.

In addition, the military dropped all spying charges against Senior Airman Ahmade al Halabi, a 25-year-old Syrian-American who worked as a translator at Guantanamo and had faced the death penalty. Halabi pled guilty to four minor offenses, including photographing a guard tower and taking a classified document to his living quarters.

That followed the dismissal of all charges against Army Captain James Yee, a Muslim chaplain, who also had been threatened with execution after his arrest on suspicion of espionage at the base in 2003.

All of these examples illustrate the importance of presenting highly charged allegations to a fair form of adversarial testing before an impartial judge or jury. When monstrous crimes have been committed there is an understandable impulse to hold someone responsible. This pressure magnifies both the risk of convicting the innocent and the importance of an adversarial presentation of evidence to an impartial decisionmaker.

I ended my 2004 Harvard talk by discussing the one true threat to the existence of the United States, the War of Independence which was fought to separate America from Great Britain. As an acclaimed American historian had then recently written:

In 1776, American leaders believed that it was not enough to win the war. They also had to win in a way that was consistent with the values of their society and the principles of their cause. One of their greatest achievements in the winter campaign of 1776-77 was to manage the war in a manner that was true to the expanding humanitarian ideals of the American Revolution. It happened in a way that was different from the ordinary course of wars in general. In Congress and the army, American leaders resolved that the War of Independence would be conducted with a respect for human rights, even of the enemy. This idea grew stronger during the campaign of 1776-77, not weaker as is commonly the case in war.^[xviii]

Therefore, in 1776 and 1777, the Continental Congress established a “policy of humanity,” that was articulated by John Adams and put into military practice by General George Washington. Although the British treated captured Americans brutally, Washington prohibited the torture of captured British soldiers and, indeed, ordered his army to treat them humanely. As the historian correctly concluded, these “moral choices . . . enlarged the meaning of the American Revolution.”¹⁹

George Washington and John Adams were later elected the first two Presidents of the United States. As the immediate response to 9/11 indicates, the United States is challenged to remember the wisdom and courage of its Founding Fathers, and does not always or immediately succeed in doing that. However, as I indicated earlier, the Americans most respected by history are those who have strived to do so.

The First Amendment to the United States Constitution, which was adopted in 1789, prohibits Congress from making any law “abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Nevertheless, in 1798 Congress enacted a law that made seditious libel a crime. It was claimed that the legislation was needed to defend the country against the kind of terrorism that had just brought a bloody end to the monarchy in France. The statute was interpreted and applied, however, to criminalize criticism of President Adams and, therefore, injure the ability of Thomas Jefferson to campaign against him in the Presidential election of 1800. However, Jefferson and his supporters persuasively denounced the law as un-American, which contributed to Jefferson defeating Adams, and the repeal of the Sedition Act before its constitutionality had to be decided by the Supreme Court.²⁰

In 1919, an anarchist detonated a powerful bomb at the home of the United States Attorney General in Washington, D.C., as part of a plot to explode bombs in cities throughout the country. The Attorney General characterized the bombings as “an attempt . . . to terrorize the country.”²¹

Later that year, the Supreme Court decided four cases which upheld convictions under the Espionage Act for what is now rightly regarded as protected political speech. For example, in one case the defendants had merely urged conscripts to refuse to join the military.²²

In the fourth case, the Supreme Court affirmed the convictions of several refugees from Russia who had distributed leaflets protesting President Woodrow Wilson’s decision to send American troops to Russia after the Bolshevik Revolution.²³ Justices Oliver Wendell Holmes and Louis D. Brandeis dissented from this decision. Holmes explained that the United States only had the power to punish speech that creates a clear and immediate danger of serious harm — speech that is both intended to incite violence and is likely to do so immediately. Under this test today, an order from a leader of Al Qaeda to a suicide bomber to destroy his target would not be protected speech. However, an imam’s sermon promoting violent jihad would be protected if there was only some general risk that it would encourage an unidentified individual to act.²⁴

In 1927, in another dissent joined by Holmes, Brandeis explained the principles on which freedom of speech in America is based. As Brandeis wrote:

Those who won our independence . . . recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; [and] that hate menaces stable government . . . .²⁵

Therefore, Brandeis concluded, America’s Founders “amended the Constitution so that free speech and assembly should be guaranteed.”²⁶

Because many of their colleagues succumbed to the passions and pressures of the times, Holmes and Brandeis were originally in the minority. However, their positions on speech have become the law in the United States,²⁷ and Brandeis and Holmes are now remembered and revered as the “Great Dissenters.”

In 1940, Robert Jackson was the Attorney General of the United States. He would go on to become a distinguished member of the United States Supreme Court, an architect of the Nuremberg War Crimes Tribunal, and the Chief American prosecutor there. In 1940, foreign foes were making many in the United States frightened and insecure. Jackson urged his prosecutors not to be influenced by those anxieties. As he explained:

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in the cases which deal with “subversive activities.” . . . Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive.²⁸

Therefore, Jackson told his prosecutors that:

In enforcement of the laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is the responsibility of the federal prosecutor.²⁹

In 1950, the United States’ commitment to the rule of law was again challenged by a national sense of insecurity. In 1949, the Soviet Union had exploded an atomic bomb, causing many Americans to fear a devastating nuclear attack. A lawyer who worked in the Internal Security Section of the Department of Justice, Judith Coplon, was arrested while passing stolen classified documents to a Soviet official. Coplon’s attorneys suspected that the warrant for her arrest was based on information obtained by illegal wiretaps. However, the trial judge refused to disclose to Coplon the records necessary to determine whether this was true. Coplon was convicted and sentenced to serve 15 years in prison.

On appeal her conviction was vacated. It was obvious that Coplon was guilty. However, in the United States we believe that achieving even the most important end never justifies the use of illegal means by law enforcement, and a defendant is entitled to the information necessary to test whether the evidence against her was lawfully obtained. As Judge Learned Hand explained in reversing Coplon’s conviction:

Few weapons in the arsenal of freedom are more useful than the power to compel a government to disclose the evidence on which it seeks to forfeit the liberty of its citizens. All governments, democracies as well as autocracies, believe that those they seek to punish are guilty; the impediment of constitutional barriers are galling to all governments when they prevent the consummation of that just purpose. But those barriers were devised and are precious because they prevent that purpose and its pursuit from passing unchallenged by the accused, and unpurged . . . by public scrutiny and public criticism. A society which has come to wince at such exposure of the methods by which it seeks to impose its will upon its members, has already lost the feel of freedom and is on the path towards absolutism.³⁰

George Washington, John Adams, Oliver Wendell Holmes, Louis Brandeis, Robert Jackson, and Learned Hand are in the pantheon of famous American heroes. However, the United States has also been fortunate to be served by little known, perhaps unremembered heroes as well – women and men dedicated to assuring that law enforcement is fair as well as effective even in times of terror. As described earlier, in 2004 the Supreme Court rejected the President’s claims that American citizens he deemed to be terrorists could be imprisoned without judicial review and that aliens detained at Guantanamo were not protected by United States laws, enforceable in United States courts. However, the Supreme Court was not required to decide whether waterboarding and comparable interrogation techniques violated the United States statutes and treaties prohibiting torture. That is because in 2004 a young law professor named Jack Goldsmith became the Assistant Attorney General for the Office of Legal Counsel, a position often characterized as the “President’s lawyer.”

Goldsmith reviewed his predecessor’s legal opinions advising the President that he had absolute power to decide how captives would be treated and found them to be without any foundation in the law. Goldsmith similarly concluded that an important, secret National Security Agency surveillance program was unlawful. Therefore, Goldsmith told the President and his colleagues what they did not want to hear, but felt compelled to respect, and the unlawful practices and programs were ended.³¹

As Edward Snowden’s revelations concerning more recent secret National Security Agency surveillance programs remind Americans, the challenge to combat the serious threat of terrorism effectively, lawfully, and with respect for civil liberties never ends.³² In the United States, and in the countries represented at this conference, that challenge calls for lawyers and judges who are inspired to extend the highest traditions of our profession exemplified by the bravest and the best.

[i]. Anti-Terror Law [Terrorlaw] Act No. 3713: Law to Fight Terrorism (1991), Art. 1, available at http://www.opbw.org/nat_imp/leg_reg/turkey/anti-terror.pdf.

[ii]. Dorian Jones, Turkey: Reform Package Fails to Satisfy Anti‑Terrorism Law Critics, Eurasianet (Mar. 21, 2013, 10:11 AM), http://www.eurasianet.org/node/66725.

[iii]. Kurdish Human Rights Project, Turkey’s Anti‑Terror Laws: Threatening the Protection of Human Rights 5 (2008).

[iv]. 2012 Prison Census, Committee to Protect Journalists (Dec. 1, 2012), http://cpj.org/imprisoned/2012.php.

[v]. Suzan Fraser, Turkey Amends Anti-Terror Laws to Protect Rights, Associated Press (Apr. 11, 2013, 3:09 PM), http://bigstory.ap.org/article/turkey‑amends‑anti‑terror‑laws‑protect‑rights.

[vi]. Gareth Jenkins, Ergenekon, Sledgehammer, and the Politics of Turkish Justice: Conspiracies and Coincidences, MERIA J., July 2011, available at http://www.gloria‑center.org/2011/0/ergenekon‑sledgehammer‑and‑the‑politics‑of‑turkish‑justice‑conspiracies‑and‑coincidences/.

[vii]. European Court of Human Rights, Annual Report 2012 at 150 (2013), available at http://www.echr.coe.int/Documents/Annual_report_2012_ENG.pdf.

[viii]. Mass. Const. art. XXX; see also John Adams, The Novanglus Essays, No. VII (1775) (“Aristotle, Livy, and Harrington . . . define a republic to be a government of laws, and not of men.”).

[ix]. Edward H. Levi, U.S. Att’y Gen., Address at Swearing-In Ceremony (Feb. 7, 1975), in The Speeches and Testimony of Edward H. Levi, Attorney General, 1975-1977, at 1, 8 (Jack Fuller ed.).

[x]. Hon. Mark L. Wolf, One Judge’s Reflections on the Battle Against Terror (Nov. 16, 2004) (speech at the Carr Center for Human Rights at Harvard University); see also Editorial, An Answer to Ashcroft, Boston Globe, Nov. 18, 2004, at A22.

[xi]. The policemen who beat Rodney King were convicted in federal court and sentenced to serve years in prison. See Jim Newton, Koon, Powell Get 2 1/2 Years in Prison, L.A. Times, Aug. 5, 1993, at A1.

[xii]. Wolf, supra note 10.

[xiii]. Letter from Lord Acton to Bishop Mandell Creighton (Apr. 5, 1887), in Historical Essays and Studies (J.N. Figgis & R.V. Laurence eds., 1907).

[xiv]. Dan Eggen, Ashcroft Defends Anti-Terrorism Steps, Wash. Post, Dec. 7, 2001, at A1.

[xv]. Learned Hand, The Spirit of Liberty (May 21, 1944), in The Spirit of Liberty 189, 190 (Irving Dilliard ed., 1954).

[xvi]. See Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (plurality opinion).

[xvii]. See Rasul v. Bush, 542 U.S. 446, 486 (2004).

[xviii]. David Hackett Fischer, Washington’s Crossing 375-76 (2004).

19. Id. at 378-79.

20. Anthony Lewis, Freedom for the Thought We Hate 11-21 (2007).

21. Jack Goldsmith, The Terror Presidency 46 (2007).

22. See Schenck v. United States, 249 U.S. 47, 48-49 (1919).

23. See Abrams v. United States, 250 U.S. 616, 625 (1919); see also Lewis, supra note 20, at 28.

24. See Alan Dershowitz, Why Terrorism Works 212 (2002).

25. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., dissenting).

26. Id. at 376.

27. See Brandenburg v. Ohio, 395 U.S. 444 (1969); but see Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010) (upholding federal antiterrorism law that barred “material support,” including coordinated public advocacy, for groups designated by the government as terrorist organizations, even when such advocacy did not pose a substantial risk of inciting serious harm).

28. Robert H. Jackson, U.S. Att’y Gen., The Federal Prosecutor (Apr. 1, 1940), in 24 J. Am. Judicature Soc. 18, 19-20 (1940).

29. Id. at 20.

30. United States v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950).

31. See Goldsmith, supra note 21 at 146; Jane Meyer, The Dark Side 261-94 (2008).

32. For example, in October 2013 the government itself disclosed that some criminal defendants may have been convicted based on evidence derived from information obtained by electronic surveillance conducted by the NSA without the usually required warrant, and, as in Coplon, the defendants had not been provided this information and an opportunity to contest the legality of using evidence resulting from the NSA interceptions against them. See Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 17, 2013, at A3.