Sept. 11 Repercussions the Focus of CLS Security Experts

On the tarmac at New York’s John F. Kennedy International Airport that morning, University of Texas constitutional law professor Philip Bobbitt sat in seat 11H of a Switzerland-bound American Airlines jet. He was aboard one of the planes that, like the four hijacked, were due to take off from New York or Boston between 8:15 and 9 a.m., fully loaded with combustible jet fuel. As word of the attacks spread through the cabin, he watched both towers burst into smoke and flames.

Sarah Cleveland, who taught human rights and foreign relations at the University of Texas, wasn’t so close to the danger on Sept. 11, but she shared in the shock. Cleveland and her husband were at home in Austin with their 6-month-old baby when they heard the news over the radio. They spent the day worrying about a friend who worked in the World Trade Center as they sat riveted by TV images of the worst terror attack ever on U.S. soil.

It did not take long for Waxman, Bobbitt and Cleveland to sense that the events that day would change the world. What they couldn’t have known was how much Sept. 11 would change their own career paths, or that they ultimately would intersect at Columbia Law School.

The three are marquee additions to the faculty’s national security lineup — first-rate thinkers in the contentious debate over the reach of presidential powers in the war on terror, from the CIA’s use of harsh interrogation methods to the National Security Agency’s warrantless eavesdropping on international phone calls.

After 9/11, academic institutions scrambled to hire experts in issues surrounding national security. Law School Dean David M. Schizer’s successful recruitment of this trio bolsters Columbia’s role in determining through scholarship how current laws should be applied and revised, decisions that ultimately could affect the U.S. approach to the war on terror and that war’s success.

A host of very difficult questions are presented here, and thoughtful people can come to very different conclusions. Not surprisingly, then, Columbia Law School’s three new experts often disagree about how to balance national security and personal liberty, and about a host of policy issues that are presented in this critical and emerging field. There is vibrant debate within the School’s halls in the finest Columbia tradition.

Matthew Waxman took a fast and eventful journey to the center of the storm generated by the 9/11 attacks. In the fall of 2000, a year after earning his law degree, he began serving as a clerk for U.S. Supreme Court Justice David Souter, just in time for the court’s historic 5-4 decision settling Florida’s disputed election count and awarding the presidency to George W. Bush. He had planned to return after his clerkship to Shea & Gardner, where he had worked the previous summer under the mentoring of partner Stephen J. Hadley, when circumstances dealt Waxman another amazing twist. Rice chose Hadley to be her deputy national security adviser, and Waxman accompanied him to the White House.

In 2004, after the scandal over the military’s widely condemned abuses at Iraq’s Abu Ghraib prison, Waxman was recruited to serve as the deputy assistant secretary of defense to help manage the reform of Pentagon detention policies and practices. He says he was motivated to take the job by “the horror of what I saw” in photographs from Abu Ghraib.

While Waxman believes much more still needs to be done to put U.S. detention policy on sound legal, moral and strategic footing, he expresses pride in many accomplishments at the Pentagon. He worked with the military and the International Committee of the Red Cross to improve conditions and review processes in Guantanamo, Afghanistan and Iraq, and to put in place guidelines and warning systems to help prevent future prisoner abuses. He worked with the intelligence agencies in helping to reform the Pentagon's interrogation policies, and with allies and international organizations in Europe and the Middle East to transfer home many detainees from Guantanamo.

In the course of his Pentagon efforts, however, Waxman soon found himself deeply at odds with top administration officials when he pushed for full compliance with Common Article III of the Geneva Conventions at all military detention sites. Article III bans “cruel, inhuman or degrading treatment” and “outrages upon personal dignity.” In August 2005, he was confronted by the vice president’s counselor, David Addington, who made it clear that the White House did not embrace his perspective.

Waxman calls the meeting the low point of his six years in government. Soon afterwards he left the Pentagon for the State Department, where he served as the principal deputy director of the Secretary of State’s Policy Planning Staff, an elite pod of big thinkers created after World War II by Secretary of State George Marshall. In that unit, Waxman helped shape strategies on a broad range of subjects, including ways to counter radicalization in the Muslim world and to reform U.S. foreign aid. In 2006 he was also selected to lead the United States delegation before the UN Human Rights Committee in Geneva.

As he enters the academy, Waxman brings creativity and analytical power, along with rich government experience. For example, he has written an important article analogizing detention of suspected terrorists to targeting enemy soldiers on the battlefield. It looks to the international law of war’s rules regulating targeting to derive standards for what showing the government must make in detaining terrorist suspects. He is also writing on how the evolving nature of the terrorist threat since 9/11 should shape, at home, the relationship of local police to federal government intelligence efforts and, abroad, international rules regulating the use of military force. 

In one of his six books, Philip Bobbitt conjures gruesome images. A radioactive “dirty bomb” turns Wall Street into a no-man’s-land or a terrorist drops hundreds of anthrax-laden letters into the mail. 

These scenarios underscore Bobbitt’s belief that the public debate over terrorism has distorted the tradeoffs between liberty and security. Too many people, he says, are making the wrong comparisons, understating the terrorism threat and overstating the President’s authority to deal with it. Security and liberty are not “antagonists,” he says, noting that most Americans would willingly have yielded some privacy rights if it meant preventing 9/11.

Like Waxman, Bobbitt has his criticisms of the Bush Administration. Nevertheless, he says he is not as troubled by Bush’s policies per se as he is that the Administration failed to adhere to “the rule of law.”

“Law ought to be their greatest strength in a society like ours,” he says. “They [Bush officials] should have gone to Congress… and gone for legal reform.”

Americans can expect far worse privacy intrusions and security inconveniences if another major attack occurs, Bobbitt says. That’s why he argues that the Administration should work out the rules with Congress in advance. 

“We need to have an open public debate about what sorts of laws will apply in an emergency,” he says. “I do think we’re in a time of relative tranquility now. This is the time to have the debate, not after something really horrific happens again.”

Bobbitt bases his views on a wide range of experience. Besides teaching constitutional law at the University of Texas over the past 30 years, he served as intelligence director for the National Security Council under President Clinton and helped rewrite the CIA charter governing covert actions during the Carter Administration. He holds a doctorate in history from Oxford along with his law degree, and believes that the two subjects overlap in the war on terror.

In interviews and in his new book, Terror and Consent (Knopf), Bobbitt continues to argue that debates over U.S. terrorism policies are too often framed in “unproductive” ways.

A case in point is the furor over the NSA’s secret program to eavesdrop on overseas phone calls. Bobbitt notes that, when Congress passed the Foreign Intelligence Surveillance Act in 1978, which gave a secret court authority to issue wiretap and search warrants for espionage and counterterrorism investigations, technology was almost the opposite of what it is today. 

Thirty years ago, international phone conversations were transmitted almost entirely by long-range microwave, while domestic calls came mainly over hard wires. Today, international calls are made over coaxial cables, while most domestic calls are wireless. And calls made between two overseas points might run through U.S. switches.

“So the statute that depends in part on whether you’re receiving wireless or wired communication” had to be reformed, he says. 

Bobbitt notes the absence of any Fourth Amendment requirement that a court warrant must authorize every wiretap, a position that new U.S. Attorney General Michael Mukasey, who has been a Lecturer-in-Law at Columbia Law School, voiced at his Senate confirmation hearing.

“I don’t think warrants ought to be the be-all, end-all in protecting your rights,” Bobbitt says.

It might be sufficient, he adds, to have a judge give overall approval to an intelligence program or to let computers collect the data and require government agents to “go through certain evidentiary hoops,” such as signing written requests, to get a close look at it. It is probably preferable to have a judge reviewing the conduct of any data collection effort, rather than simply granting a warrant at the outset, he continues.

Like Waxman and Bobbitt, Sarah Cleveland frets that the narrowing of captives’ rights has eroded the United States’ moral authority internationally, though she goes a step further in asserting that the Administration has failed to abide by U.S. and international laws. 

A widely published scholar who studied at Oxford University in the late 1980s and later taught a course there in human rights, Cleveland finds flaws at every turn in the Bush Administration’s approach to the war on terrorism.

“There is flex in law and there’s flex in our law,” she says. “There’s just not as much flex as the Administration would like. I get the sense that the Administration would like no laws in these contexts. But in war there are laws … and they exist to order relationships in the international community.”

Cleveland, who first taught at Columbia as a visiting professor In 2005-2006 and is now the Louis Henkin Professor of Human and Constitutional Rights, developed her expertise under impressive mentors, such as Burke Marshall, the legendary Justice Department civil rights chief of the early 1960s whose voting rights enforcement campaign helped change the face of America. Others include Supreme Court Justice Harry Blackmun, for whom she clerked. She traces her interest in international human rights law partly to her work for Michael Ratner ’69, president of the Center for Constitutional Rights, in a project that sued the first Bush Administration over its treatment of Haitian refugees who were intercepted at sea. They were held at Guantanamo, given cursory asylum hearings without lawyers and sent home. 

“In the middle of the litigation, the United States terminated the hearings and began summarily repatriating everyone back to Haiti,” she says. The government’s argument was that relevant Laws did not apply outside the United States. “That was my introduction into a lot of the doctrines that we’re seeing employed now,” she adds.

More than a decade later, Cleveland is assailing the Administration’s assertion that the Constitution does not apply extraterritorially and that the President’s national security grounds hold sway over all competing legal claims. The Administration’s initial failing, she says, was its decision to spurn the Geneva conventions’ “shockingly minimal” requirement that each detainee captured in Afghanistan and held at Guantanamo must receive a status review hearing.

“The result of that decision has been six years of litigation over the status of the people at Guantanamo, as well as tremendous international criticism and concern about who was actually being detained there,” Cleveland says.

After the Supreme Court ruled that U.S. courts had not surrendered their right to review the captives’ habeas corpus petitions, she says, Congress compounded matters by passing the 2005 Detainee Treatment Act and the 2006 Military Commissions Act, which again imposed limits on detainee rights. She denounces the creation of “one-sided … illegitimate” status review panels that permitted coerced testimony and kept some evidence from defense lawyers.

“The United States has always criticized countries that have set up separate courts for terrorists because they don’t provide ordinary and fair process,” Cleveland says. She points to the Clinton Administration’s criticism of Peru’s secret 1996 military trial of American Lori Berenson, who was convicted of collaborating with terrorists — a verdict later overturned as unconstitutional, along with 2,000 others. Berenson’s life sentence was reduced to 20 years after a retrial in a civilian court. 

“My view is… that it’s precisely the relaxation of the traditional civil and human rights laws that has exacerbated some of the problems we’ve had in fighting the war on terror,” Cleveland says.

She says these mistakes have undermined the United States’ stature, which has prevented it from leading an appropriate international response to the humanitarian crisis in the Sudan.

Waxman expresses pride in many of his accomplishments at the Pentagon, saying he got about as far as he could with the Bush Administration in putting more effective and humane Pentagon detention policies in place. But he expresses frustration that neither the Bush Administration nor the Congress have adequately challenged assumptions that guided them in the immediate aftermath of 9/11.

There are no easy ways, Waxman says, to “strike… extremely difficult balances” between security and liberty. “But we’ve learned a lot in the past seven years.”

In a Washington Post editorial, Waxman advocated closing Guantanamo and establishing robust judicial review of detentions. “Neither U.S. criminal law nor the international laws of war were built to deal with networks of terrorists stretching across continents,” he wrote, “[s]o the United States, along with its closest democratic allies, ought to craft rules that are.”

“As a result of some tough battles and some intense experiences inside national security decision-making,” he says, “I hope to bring an approach to teaching and scholarship that’s really needed.”

Having worked in the White House, Bobbitt also has seen the counterterrorism fight from within, and is realistic about the possibility of another wide-ranging terrorist attack. Sitting on a bench in Lafayette Park across from the White House, he says he considers the current terrorist threat against the homeland to be “negligible,” but still expects an attack on New York or Washington within the next 15 years, possibly with biological or nuclear weapons. Such a “doomsday” scenario is something with which he is familiar.

Recently, he served on the presidential Continuity of Government Commission, tasked to recommend legislation to prepare the nation for a massive, disabling attack, such as one that killed more than half of the 435 house members. If neither party could achieve a 218-vote majority, he says, the nation would face a constitutional crisis.

“You can’t replace a congressman without a new election,” Bobbitt says, meaning it would be at least six months “before you could declare war against whoever attacked you.” Terrorists, he adds, “have the potential to do something that probably no state could do, which is to destabilize a democracy.”

Besides favoring the closing of Guantanamo, Cleveland also calls for the repeal of the Detainee Treatment Act and the Military Commissions Act, as well as honoring the Geneva Conventions and the Conventions Against Torture, to which the United States is a party.

What she would like to see reversed, she says, is the Administration’s reliance on a 19th-century concept that the Constitution does not apply beyond U.S. borders, such as at Guantanamo Bay.

“International law has long since abandoned the view that a sovereign nation cannot act outside its borders, if the rule was ever as rigid as that,” Cleveland says.

The right of detainees in U.S. custody to challenge the legality of their detainment — the right to habeas corpus — is being tested in Boumediene v. Bush. This right should be protected for all, says Cleveland, who wrote a section of an amici curiae brief signed by 24 law professors with expertise in habeas corpus and federal jurisdiction (including Bobbitt and Professor Vincent Blasi). Oral arguments were heard in early December, and a decision is expected sometime this spring. 

If there were another major attack, she says, the government would take emergency steps to further tighten security and identify potential terrorists. The reach of U.S. civil rights and human rights laws would then almost assuredly, she says, “be up for grabs.”

Greg Gordon, an investigative reporter in the Washington Bureau of McClatchy Newspapers, has written extensively about terrorism.