Opening Argument – The Perils of Torturing Suspected Terrorists

National Journal

The abuses at the Abu Ghraib prison in Iraq stand out for their pointlessness as well as their cruelty. Done in the name of collecting intelligence about insurgents, this brand of brutality has surely created more of them. Sodomy with a chemical light, threats of rape, a female soldier posing gleefully next to a stack of naked male prisoners, beatings with a broom handle, to say nothing of the possible murders: These are the techniques of sadistic amateurs, not of intelligence experts. That’s why their criminality is so obvious. 

Opening Argument – The Fragility of Our Freedoms in a Time of Terror

National Journal

Deputy Solicitor General Paul Clement argued skillfully before the Supreme Court on April 28 for President Bush’s claim that the military can grab any American suspected of being an "enemy combatant," anywhere, at any time, and hold him incommunicado for months, years, even for life, with no chance to see a lawyer or tell a court that he is an innocent civilian.

Opening Argument – Guantanamo: Why the President Is Courting Defeat

National Journal

President Bush seems likely to lose the first big war-on-terrorism battle that has come before the Supreme Court. He richly deserves to lose, for he has claimed absolute, unaccountable power to lock up more than 600 foreigners as "enemy combatants" in his prison camp at Guantanamo Bay, potentially forever, with no semblance of a fair hearing for those who claim to be innocent civilians.

Opening Argument – 9/11: Save Some Blame for Courts That Created The ‘Wall’

National Journal

"We did not know an attack was coming because, for nearly a decade, our government had blinded itself to its enemies." So said Attorney General John Ashcroft in his April 13 testimony to the 9/11 commission. He accused commission member Jamie Gorelick of "flawed legal reasoning" in a 1995 memorandum in which, as Bill Clinton’s deputy attorney general, she had helped raise a legalistic "wall [that] left intelligence agents afraid to talk with criminal prosecutors or agents."

Opening Argument – How to Rebut Clarke Without Slinging Mud

National Journal

It is said that every country has the government it deserves. Do we really deserve to have Republican and Democratic administrations alike meet their critics less with factual refutation than with indiscriminate, often mendacious attacks on the critics’ credibility, character, and motivations? Are the American people so averse to what Learned Hand called "the intolerable labor of thought" that the surest way to win their votes is to resort to crude character assassination? Or have our leaders let the transitory joys of mudslinging blind them to the strategic advantage of showing some class?

Opening Argument – How Spain Could Bring Bush and Kerry Together

National Journal

The apparent success of terrorists in scaring the Spanish electorate into replacing one of President Bush’s closest allies with a strident Bush critic is not merely a disaster for Bush. It is a disaster for the United States, and for whoever wins the presidency in November. Terrorists may seek to use similar massacres to swing our own elections, although that might be more likely to elect Bush than John Kerry. And the rising tide of European appeasement of Al Qaeda and its ilk will threaten to isolate America for years to come.

Opening Argument – ‘Enemy Combatants’: Inching Toward Due Process

National Journal

The perception that the Bush administration has systematically denied due process to the more than 650 alleged "enemy combatants" at Guantanamo Bay has both shocked Americans who care about the rule of law, me included, and done America enormous damage in world opinion. But the system may be starting to work. Indeed, it may have been working for some time better than I had thought.

Opening Argument – The Supreme Court Needs To Rule on’Enemy Combatants’

National Journal

What power has the government to detain and interrogate American citizens and others whom it suspects of links to foreign enemies but cannot criminally prosecute without harming its ability to gather intelligence? And what rights have such people to challenge the government’s claims that they are "enemy combatants"?

Opening Argument – Moussaoui May Deserve to Die, but Not Without a Fair Trial

National Journal

It would be no loss to humanity if we dragged Zacarias Moussaoui in front of a firing squad tomorrow and shot him. He has boasted in open court of being a "member of Al Qaeda" and loyal to Osama bin Laden, and of knowing "exactly who" committed the 9/11 mass murders. He has declared, "I, Zacarias Moussaoui, urge, incite, encourage, solicit Muslim to kill Americans, civilian or military, anywhere around the world." He is crazy and evil.

Rights, Liberties, and Security: Recalibrating the Balance after September 11

Brooking Institution

How can we avert catastrophe and hold down the number of lesser mass murders? Our best hope is to prevent al-Qaida from getting nuclear, biological, or chemical weapons and smuglling them into this country. But we need be unlucky only once to fail in that. Ultimately we can hold down our casualities only by finding and locking up (or killing) as many as possible of the hundreds or thousands of possible al-Qaida terrorists whose strategy is to infiltrate our society and avoid attention until they strike.

The urgency of penetrating secret terrorist cells makes it imperative for Congress—and the nation—to undertake a candid, searching, and systematic reassessment of the civil liberties rules that restrict the government’s core investigative and detention powers. Robust national debate and deliberate congressional action should replace what has so far been largely ad hoc presidential improvisation. While the USA-PATRIOT Act—no model of careful deliberation—changed many rules for the better (and some for the worse), it did not touch some others that should be changed.