The terrorist attacks on New York City in 2001 set in motion a chain of events that has played less as a logical progression than an avalanche of questionable acts. The United States has invaded two distant countries under pretenses that have since become suspect, and has committed troops and funds to what many consider to be unwinnable wars. The so-called Patriot Act, made law on Oct. 26, 2001, authorized the indefinite detention and deportation of immigrants, broadened the definitions of terrorism and terrorists, expanded the government's use of secretive surveillance methods, and gave emergency powers to the president that many considered to be in violation and defiance of the Constitution.
The negative results have been many, including the torture of detainees, reduced or threatened civil liberties for all citizens, many lives lost in conflict, and the weakening of American alliances abroad. As you are no doubt aware, the Obama administration has taken quick and clear steps to halt or reverse processes enacted by the Bush administration.
What happens in places like Guantanamo Bay, Abu Graib, Kabul, or even New York City, for that matter, might seem to be of no significance to those of us with lives to get on with here in the comparative quiet and safety of East Tennessee. Some of your neighbors see things differently. During a time when the atmosphere has bordered on panic, when the attorney general was asking Americans to report the suspicious activities of their neighbors, some Knoxvillians broke from the fold to challenge the Bush Doctrine. They let it be known that their government no longer spoke for them as individuals or as professionals invested in upholding the law.
Friend of the court
On Jan. 22, his second full day in office, President Barack Obama signed several executive orders. He put an end to the CIA's secret overseas prisons. He banned coercive interrogation methods. He began the process of closing the Guantanamo Bay detention camp within one year. And he ordered a high-level review of the case of suspected terrorist Ali Saleh Kahlah Al-Marri. Al-Marri is a Qatari citizen who was living legally in Illinois with his wife and children, studying computer science at Bradley University, when he was arrested in December 2001. Al-Marri spent time in multiple facilities, but has been detained since soon after his arrest at the naval brig in Charleston, S.C. He has the distinction of being the only unlawful combatant currently in detention on the American mainland.
Among the bushels of documents at the disposal of the White House legal team that influenced the president's order to re-examine Al-Marri's case is a brief amicus curiae, or "friend of the court brief," submitted to the Fourth Circuit Court of Appeals in November 2006. The eight friends who shaped and signed the document are mostly former U.S. Attorneys. One of them is Janet Reno, former U.S. Attorney General. And another one is Tom Dillard, of the Knoxville firm Ritchie, Dillard and Davies.
"I think we all share the same philosophy and that's why we signed on," says Dillard. "I think it shows the merit of the opposition, to see the various people that have signed on as amici. It's certainly not a situation where you see people who were never on the other side or never involved in prosecution or in a judging position."
Currently, Dillard's practice is criminal defense, specializing in white-collar cases. But he has also served as Assistant U.S. Attorney and U.S. Attorney in the Eastern District of Tennessee, and was appointed by President Reagan to serve as U.S. Attorney in the Northern District of Florida. In other words, it was his job for many years to make sure that criminals went to jail. For such a person to communicate directly to the federal judicial system that prosecutors are overstepping legal boundaries is significant.
"I don't think there was anybody in there looking for any approbation or approval for doing it," Dillard says. "That's just the way we felt. I would have felt bad had I not signed it. I think what we're doing in trying to circumvent the Constitution and deliver punishment and interrogation and confinement in the way we are …."
He pauses, at a loss for words. Then he finds them: "If we don't step up, who will?"
Judging by the public evidence against him, Al-Marri is probably not an Eagle Scout and has some things to answer for. Calling cards in his name were used in communications to a known Al Quaeda financier. His computer contained information asserting his interest in jihad, weapons, stolen credit card numbers, and false identification. That's not the point. The friends of the court, including Dillard, argued persuasively that Al-Marri's alleged crimes and his situation at the time of his arrest entitled him to access to the United States criminal justice system, not trial by military commission. The brief argued further that his indefinite detention (Al-Marri is stilled detained in Charleston) is in fact in violation of the Military Commission Act of 2006. In essence, Al-Marri, a man taken into custody as a material witness in a small Midwestern college town, is being treated as if he were captured, sizzling-bomb-in-hand, on a battlefield.
"The Patriot Act, that was a bellwether event," says Dillard. "Those of us in the criminal defense practice could see what was coming. We were definitely afraid that this was, if not the first step, certainly a major step toward diluting our Constitution and our freedoms and privileges and protections. The act was just too loose in its wording. It gave too much unchecked authority.
"We don't have those types of cases on a regular basis. But it still doesn't mean that an individual, locally, could not suffer the consequences of a Patriot Act-related search warrant. We have had cases where Patriot Act provisions were employed. The problem is, the way the Patriot Act is worded doesn't limit it to what you would consider to be a quote ‘terrorist.' It's not limited. That's one of the major problems. Anytime you have an attempt, for instance, to diminish rights like habeas corpus, there's no way to limit that to a particular type of case. What you've done is open the door to the diminution, or erosion, of 200 years' worth of protections that people have."
Jennifer Hendricks is an associate professor at University of Tennessee Law School. She teaches courses in basic constitutional law and an advanced seminar on the same subject.
According to Hendricks, the root of the problem with the Bush Doctrine falls under the "basic" category.
"For anyone who has loved ones or knows anyone who's in our military," says Hendricks, "it does really matter if we no longer abide by the Geneva Conventions, and neither do the people who capture our soldiers.
"The legal theory by which Bush was claiming the right to detain people indefinitely and try them without any judicial oversight is the same theory that's the basis for claiming the right to wiretap domestically and go get your library records."
Is it a challenge to teach constitutional law at a time when some believe it's not being upheld?
"It did feel a little strange and I changed what I taught and spent a little more time on questions about executive power," says Hendricks. "It was interesting. It's a difficult area because there hasn't been as much law about it and everything's kind of vague and fuzzy. There was a tendency in the class to be very accepting of … ‘Yeah, I guess the president should be able to do that because he's the president.'"
Hendricks says that in the classroom, that's not necessarily wrong thinking as long as it's accompanied by a sound argument.
Hendricks has also practiced law, as a civil litigator in Montana, before moving to Knoxville three years ago. One of her cases, in pursuit of information by means of the Freedom of Information Act (FOIA) did in fact hit a dead end caused by the Patriot Act. Her husband, Steve Hendricks, is the author of The Unquiet Grave. The book is an examination of the circumstances surrounding the murder of Indian civil rights activist Anna Mae Aquash.
Jennifer Hendricks explains, "I was representing Steve in a FOIA case against the FBI, Bureau of Indian Affairs, Indian Health Service, Executive Office of U.S. Attorneys, and others. A 30-year-old murder investigation involving an activist in the Indian civil rights movement. Out of the blue, connected with one motion, I got a notice from the court that the Department of Justice had sealed the file for national security reasons."
"It was an uncomfortable case during the FBI's virulently anti-left period where they were involved—they were not the direct killers, but involved around the edges—in the murder of a leftist activist," Steve Hendricks adds. "She was killed because people thought she was an FBI informant, which was exactly what the FBI wanted people to think. They didn't want this coming out. There wasn't a drop of national security interest involved in this. ‘We've got the Patriot Act which says that whatever information we think is ours is ours.'"
As it happens, Steve Hendricks is currently nearing completion of a book about the United States government's covert policy of extraordinary rendition. The process has infinite variations, but it typically involves the extrajudicial transport—also called kidnapping—of a suspect to some part of the world for interrogation that often makes use of torture.
"It's not a subject that most Americans care about," says Steve Hendricks, "most Americans never having been tortured or subjected to the things that we've subjected our illegal prisoners to.
"I think being Americans and being generally insulated against the current of world affairs, what we don't realize is that these are crimes against humanity. These aren't garden variety crimes. These aren't something that affect only the person who was tortured or friends and family. They're called crimes against humanity for a reason. They have an impact millions of times beyond the crime itself."
Steve Hendricks' new book focuses on the rendition of a man most often referred to as Abu Omar. Abu Omar was the imam of Milan, in Italy, when he was abducted by American agents and transported to Egypt for interrogation. The case is unusually well-documented, due mostly to the contrary thinking of the Italian officials who have refused to look the other way.
"For every Muslim we've snatched off the streets and sent to Algeria or to Jordan or to Egypt to be tortured, there are a hundred million more who live in fear of us every single day," says Steve Hendricks. "That's the crime, and we have not rectified that."
Steve Hendricks has tracked down and met several of the spies who were involved in the Abu Omar rendition. He says among the traits they share are their normalcy, their poor ability to lie, and their belief that no one will ever find them. Hendricks' immersion in the international spy game has given him additional insight into many differences and similarities between the United States and other countries, both currently and over time.
"I don't want to be too negative," says Steve Hendricks. "On the other hand, what I want to say is that it's very easy for anyone to become ‘the good German.' We think that our cause is right and we think that it justifies whatever we need to do to support that cause. But, in fact, the Patriot Act is just as bad as some of the terrible restrictions on freedom that were passed in Nazi Germany. Fortunately we didn't go all the way down that path. But the mentality that allows that kind of atrocity to happen—this nationalism called the Patriot Act passed in the guise of patriotism—is something that's a danger to every society.
"The fact that we weren't vigilant enough to stop that is distressing but perhaps not all that surprising. At core, I think it's very easy to motivate America by fear."
Salim Hamdan is a citizen of Yemen. Hamdan was captured in Afghanistan in 2001. He admitted to being Osama bin Laden's driver, though he insisted that he took the job simply for the money, not because he shared any ideology with his employer. During Hamdan's detention at Guantanamo Bay, Hamdan v. Rumsfeld became one of the acid tests of the Bush Doctrine. A U.S. District Court ruled that trying Hamdan by military tribunal would be a violation of the Geneva Conventions. An appeals court with now Supreme Court Chief Justice John Roberts at the bench overturned the decision. In 2006, the Supreme Court sided with Hamdan and the District Court. Ultimately, Hamdan was convicted of providing material support to the enemy (instead of the alleged war crimes for which he was supposedly being detained) and given a five-and-a-half year sentence that took into account his five years in detention. He has since returned to Yemen.
The formal written request asking the Supreme Court to review a lower court's decision is called a petition for a writ of certiorari. Hamdan's attorneys filed in September 2005. Their petition included a supporting document addressed to Sen. Patrick Leahy, Chairman of the Senate Judiciary Committee, describing the military commissions set up to try combatants as "legally deficient, unnecessary and unwise." It was signed by more than 100 lawyers and law professors including Knoxvillian Melinda Meador, who at the time was both.
"One of the greatest aspects of this country is its judicial system," says Meador. "I absolutely believe that. Part of the bedrock of that judicial system is the separation of powers. The executive branch has no direct control over the judiciary apart from making court appointments. So the president cannot simply, at his discretion, direct a court to rule in a certain way, or intervene in a proceeding, unless at some point before going out of office he decides to commute someone's sentence or pardon them. That's the only power that he has to effectively override the judicial system.
"The president—now former president—took unto himself the authority to direct the judicial system as it exists and operates outside the country. In doing so, not only did he circumvent the judicial system, he also circumvented the Geneva Conventions that we are signatories to."
Meador is a civil litigator at the Knoxville firm Bass, Berry and Sims. She represents the firm's corporate clients in complex business litigation suits.
"I go to court a lot," she says.
For Meador, what would a day in court be like without the fundamentals that were lacking in the military commission system, such as habeas corpus and declaration of evidence?
"Honestly," says Meador, "it's incomprehensible."
Like Tom Dillard, Meador has worked both sides of the courtroom. She has also worked in Washington, with the FDIC and as part of the team that investigated Madison Guaranty during the commotion over the Clinton family's involvement in Whitewater.
"I have in years past been a criminal defense attorney," Meador says. "I have also been a criminal court prosecutor. I'm on the board of the ACLU for Tennessee. It didn't occur to me that I should not sign a letter like this, because essentially what this letter sets out is almost exactly what the Supreme Court ruled was correct in Hamdan. There was nothing controversial to me about signing this letter.
"I do think that the senate judiciary committee attempted to address some of these issues [in the letter]. They were essentially overridden by the president. Because we are in this so-called war on terrorism, I think the Congress was reluctant to take issue with the president on some of these matters. But of course the new administration has done precisely what one would hope in suspending the use of any of the military commissions and moving to shut down Guantanamo."
For many, the months immediately following 9/11 were troubling both because of the attack itself and because of the official response to it. Loyalty to the United States now needed to be demonstrated rather than assumed. Civil liberties, we were told, could be sidestepped in the interest of security. One imagines that there is some risk for an attorney to document his or her opposition to the thinking of the commander in chief.
"In terms of why this is important to me and why this should be important to all of us, there's a very practical reason," Meador says. "I grew up in the shadow of the Vietnam war. I learned what the Geneva Conventions were as a child. I heard them discussed. I read about them. We relied on them tremendously because we had prisoners of war in Vietnam, who we wanted to believe were being given the benefit of the Geneva Conventions. They protected us during those years, or we wanted to think they did. And we condemned the North Vietnamese if they breached those conventions in their treatment of our prisoners of war.
"For us to say that others should be deprived of what we have relied upon so tremendously over the years is a travesty. That should never happen. We can't just use them when it's convenient for us to use them. To me that was one of the most appalling things about it. And what's going to happen the next time we lose some of our servicemen to a country that won't give us the benefit of those Geneva Conventions? It's going to come back on us, I worry very much. And that's why I think it's so important what the president has done."