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  • Press Releases - American Academy of Arts & Sciences
    How to Read a Diary The joint meeting continues the longstanding collaboration between the two institutions As Spacks explained It s not hard to understand why people enjoy reading diaries of the famous in order to get an inside glimpse of exceptional lives Nor is it difficult to know why Boswell s London Journal was a best seller good stories bawdy bits Pepys provides similar appeal Virginia Woolf s diaries supply mini essays on the literary life one can multiply examples But what is the attraction of diaries that offer only records of uneventful and undistinguished lives Two such diaries kept over long spans of time by eighteenth century writers unknown except for their daily accounts provide test cases for assessing the interest of what might be called hidden narratives The writers an American Quaker woman living in Philadelphia and an English country clergyman both lived through the years of the American War for Independence although neither makes that war a primary subject for reflection Investigation of these diaries reveals techniques for analyzing and appreciating the superficially unappealing and demonstrates the rewards of analysis The Edgar F Shannon Professor of English at the University of Virginia Spacks has written on the poets and novelists of the time in such books as The Poetry of Vision and Desire and Truth She has also authored books and essays on cultural as well as literary subjects including adolescence boredom gossip and women writers from the eighteenth century to the present Her new books Privacy Concealing the Eighteenth Century Self will be published this spring by the University of Chicago Press Spacks is chair of the board of directors of the American Council of Learned Societies and a trustee of the National Humanities Center The American Academy was founded in 1780 by John Adams

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  • Press Releases - American Academy of Arts & Sciences
    is Regental Professor at the University of Texas in Austin addressed the American Academy of Arts and Sciences at its 1868th Stated Meeting at the House of the Academy in Cambridge Weinberg concentrated on these and other questions in his lecture Nuclear Terror Ambling Toward Apocalypse This lecture was in honor of two past American Academy presidents Herman Feshbach and Victor Weisskopf who devoted their lives to fostering East West cooperation in nuclear arms control Weinberg a Fellow of the American Academy since 1968 has taught at Columbia University the University of California at Berkeley the Massachusetts Institute of Technology and Harvard University In 1982 he moved to the University of Texas Austin and is founder and director of its Theory Research Group he is also a member of the physics and astronomy departments His research has spanned a broad range of topics in quantum field theory elementary particle physics and cosmology and he has been honored with numerous awards including the 1979 Nobel Prize in Physics and the National Medal of Science He holds honorary doctoral degrees from thirteen universities and is a member of the National Academy of Science the Royal Society of London and the American Philosophical Society Currently he serves as a member of the Board of Editors of Daedalus a member of the Board of Directors of the Federation of American Scientists a Senior Advisor to the JASON group of defense consultants a National Sponsor of the Committee of Concerned Scientists and a member of the Council on Foreign Relations Independent Task Force on Homeland Security Imperatives In addition to the treatises Gravitation and Cosmology and The Quantum Theory of Fields Weinberg has written several books for general readers including the prize winning The First Three Minutes The Discovery of Subatomic Particles Dreams of a

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  • Press Releases - American Academy of Arts & Sciences
    the faculty and students of Cambridge with wonderful opportunities and I am grateful for this collaboration said Mayor Michael A Sullivan The Academy enjoys existing relationships with such universities and institutions as Boston University Tufts University Harvard University Brandeis University Wellesley College the Massachusetts Institute of Technology the Boston Public Library and the Boston Athenaeum We welcome this opportunity to strengthen our relationship with the schools of Cambridge said Patricia Meyer Spacks President of the American Academy Education has long been a focus of attention and research for the Academy Following the lead of its founder John Adams who said Wisdom and knowledge diffused generally among the body of the people is necessary for the preservation of their rights and liberties the Academy has engaged in pioneering work on education from primary schooling to post graduate study throughout its history The American Academy was founded in 1780 to cultivate every art and science which may tend to advance the interest honor dignity and happiness of a free independent and virtuous people The current membership of over 3 700 Fellows and 600 Foreign Honorary Members includes more than 150 Nobel laureates and 50 Pulitzer Prize winners Drawing on the wide ranging expertise of its membership the Academy conducts thoughtful innovative non partisan studies on international security social policy education and the humanities The event the American Academy s 1867th Stated Meeting featured cultural critic Gerald Early the Merle Kling Professor of Modern Letters at Washington University in St Louis discussing Art Race and the Coldest War The Image of the African American Soldier in Three Hollywood Korean War Films Early is the Merle Kling Professor of Modern Letters a professor of English and of African and Afro American studies and the director of the International Writers Center at Washington University in

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  • Press Releases - American Academy of Arts & Sciences
    arts and knowledge more generally Modeled on the National Science Foundation s Science and Engineering Indicators the Humanities Indicators will eventually provide much needed information about the humanities workforce the importance of humanities studies to American education and civic life and the future of humanities education The co chairs of the Academy Committee on Humanities Indicators are Francis Oakley president emeritus of Williams College and interim president of the American Council of Learned Societies Stephen Raudenbush professor of education and statistics at the University of Michigan and Kenneth Prewitt Visiting Scholar at the Russell Sage Foundation and former director of the United States Census Bureau Commenting on the Hewlett grant Leslie Berlowitz Chief Executive Officer of the American Academy said In order for any field to understand its current health it needs to understand trends The science and engineering communities have this kind of planning data but there is almost a total absence of information of this type for the humanities disciplines The Academy is pleased that the Hewlett Foundation recognizes how vital these statistics are for the humanities community as well The Academy is working in partnership with a consortium of leading nonprofit organizations in the humanities and higher education including the Association of American Universities the American Council of Learned Societies and the National Humanities Alliance The Hewlett grant will assist this group as it works to design guidelines for collecting humanities data that can be adopted by scholarly and professional organizations public humanities organizations and national educational groups The development of such a template will allow the professions to collect data consistently and compare these data across their respective fields The grant will also advance the Academy s plans to commission a model series of research studies that draws on datasets from the National Center for Education Statistics at the U S Department of Education These papers will address concerns about the quality of the liberal arts and the humanities in education including enrollments course taking patterns and school and university staffing The Academy will also explore the possibility of creating new databases that follow humanities graduates in the labor market At present no existing database tracks the career choices of those who hold undergraduate or master s degrees in the humanities New consistent information would permit comparisons to be made among the humanities social sciences and science disciplines The Hewlett Foundation incorporated as a private foundation in the State of California in 1966 was established by the late Palo Alto industrialist William R Hewlett his wife Flora Lamson Hewlett and their eldest son Walter B Hewlett The Foundation s broad purpose is to promote the well being of humanity by supporting selected activities of a charitable nature as well as organizations or institutions engaged in such activities The Academy s Initiative for Humanities and Culture was established to improve understanding of the state of the humanities and to provide a framework for examining their significance to our national culture It will develop analyses and data to

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  • Press Releases - American Academy of Arts & Sciences
    of the School of the Humanities and Social Sciences at the Massachusetts Institute of Technology Philip S Khoury astrophysicist Edward W Kolb and NPR News senior analyst Daniel Schorr addressed their colleagues as newly inducted members of the Academy Read their remarks at the Induction ceremony The Academy was founded in 1780 by John Adams James Bowdoin John Hancock and other scholar patriots to cultivate every art and science which may tend to advance the interest honor dignity and happiness of a free independent and virtuous people The Academy has elected as Fellows and Foreign Honorary Members the finest minds and most influential leaders from each generation including George Washington and Ben Franklin in the eighteenth century Daniel Webster and Ralph Waldo Emerson in the nineteenth and Albert Einstein and Winston Churchill in the twentieth Its current membership of over 3 700 Fellows and 600 Foreign Honorary Members includes more than 150 Nobel laureates and fifty Pulitzer Prize winners Drawing on the wide ranging expertise of its membership the American Academy conducts thoughtful innovative non partisan studies on international security social policy education and the humanities This year s election maintains the Academy s practice of honoring intellectual achievement leadership and creativity in all fields Former Senator Warren B Rudman R New Hampshire Nobel Prize winning chemist George A Olah four college presidents including Vassar College president Frances D Fergusson David A King chief scientific advisor to Her Majesty s government and head of the United Kingdom s Office of Science and Technology David A Kessler former head of the Food and Drug Administration and dean of the School of Medicine at Yale Rita R Colwell director of the National Science Foundation novelist William Kennedy U S Representative Amory Houghton R New York Hector Garcia Molina chair of the department

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  • Press Releases - American Academy of Arts & Sciences
    optimism about law and social engineering to current concerns about our hyper legalistic society from Wilsonian idealism to the worldwide spread of democracy the rule of law and the idea of human rights according to the volume s editors Austin Sarat Bryant Garth and American Academy Fellow Robert A Kagan Other Academy Fellows who contributed to the book include Owen Fiss Morton Keller and Martha Minow The American Academy of Arts and Sciences cosponsored the work that led to the publication of Looking Back at Law s Century The new study emphasizes the double role of law in responding to and initiating social change Representing a variety of perspectives the authors examine how law has been shaped and in turn has structured two extralegal developments the spread of democratic political processes across the world and the emergence of more productive and competitive capitalist economies Among the topics covered in the publication are race and citizenship individual and group identity crime and punishment the legal profession democracy and freedom the liberal state corporate governance civil society and the teaching of law The study was one of a number of projects within the American Academy s Social Policy and Education program Since World War II this Academy program area has initiated and sponsored pioneering works on poverty race relations ethnicity immigration and education Current studies focus on legal issues in this country the relationship between the legislative and judiciary branches and education at all levels from primary schools through graduate institutions here and abroad Projects are designed to advance the state of scholarship and develop innovative solutions to critical social problems Contributors to Looking Back at Law s Century Guyora Binder SUNY Buffalo Marianne Constable University of California Berkeley Owen Fiss Yale Law School Bryant Garth American Bar Foundation Robert W Gordon

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  • Press Releases - American Academy of Arts & Sciences
    Islam For whereas Christians understand the great self revelation or self presencing of God to mankind to be in the birth of Jesus for Muslims that which God has sent to mankind is the Koran Hence most early Christian schisms are about the nature of Jesus Most early Muslim disputes are about the nature of the Koran Now I mentioned that we want to know who are the guardians of the word In Islam as I said at the beginning there are no clear guardians of the word However by the 8th century there began to develop a class of people who by the 10th century are clearly apparent in Islamic world people we call the ulema the learned men who are to some extent the guardians of a scholastic tradition of the interpretation of the word I want to say that basically the theory of war that they worked out continued until the 19th and 20th centuries It was then transformed internally among them but at the same time their activities came to seem less and less relevant to most Muslims The Islamic conquest began more or less haphazardly Muslims found the Byzantines and the great Persian Empire next to them to be less strong Their forays turned into armies of conquest About 100 years later Muslims found themselves on the defensive They had reached the limits of their expansion and the Byzantines were able to defeat them as could the Turks in Central Asia as did Charles Martell in Europe So at this point a discussion began Does the tradition oblige continual warfare A wide array Koranic verses on warfare exists With the formation of a scholastic tradition in Islam it was said that verses that were considered to be chronologically revealed latest in the life of Mohammad abrogated all verses before them As a result many verses which advocated choosing peace over war as a way of settling conflicts were abrogated by a single verse which some call the Verse of the Sword At the same time Muslims assimilated the ideas of the imperium the universal god given right to rule which characterized both Sassanian and Byzantine political thought Now orientalist scholarship and by that I mean scholarship by non Muslims who are studying Islam from the outside by and large believe that Mohammad intended only a kind of struggle and jihad means struggle including armed struggle to conquer the peoples of the Arab peninsula Nevertheless the more aggressive belief in an imperium a universal state where there would not necessarily be an entire Muslim population but a Muslim Rule remained a theoretical possibility to Muslims and remained a possibility in classical Islamic law It disagreed with other aspects of the law and therefore the law leading to war the jus ad bellum which Professor Hehir has so well explicated here became rather messy in classical Islamic law In contrast the law as to how people should behave in war jus in bello was rather elaborately worked out and quite humanely defined no women no children no noncombatants no property not even the smallest tree as it says in the law should be harmed Equally in separate areas of the law the law about highway robbery hirābah there evolved an idea that to attack people suddenly and without warning was wrong cowardly did not allow people the chance to change their minds it could only be for bad purposes and so forth In this way a law developed which actually has a great deal of relevance to terrorism It is surprising how seldom it has been evoked in recent discussions And a third source of law developed which has to do with the universal human responsibility to rescue other people It can be called the right of rescue In Arabic it is called the right to command the good and to forbid the wrong and it is an individual obligation in Muslim thought The individual has a responsibility to forbid what is wrong Interestingly in this particular law all the aspects of what we would consider just war theory in modern Western law that is having a just cause a just intention probability of success are discussed elaborately The curious and rather sad thing is that all three of these aspects of the law were not melded together into a coherent body of law However the high scholastic tradition did undergo a transformation in the 19th and 20th centuries In the 19th century the British wanted to abolish slavery all over the world Muslim law accommodated itself to this And in the 20th century as early as the 1960s partly under the influence of the formation of the United Nations a high scholastic tradition transformed itself to say we are now all partisans of a treaty We no longer speak of the abode of war and the abode of peace something that did not arise in the time of Mohammad but came a century later On the contrary we are all in the abode of treaty dar al ahd as it is called in Arabic because we are all signatories to the Charter of the United Nations In the 1960s a quite brilliant book was written by perhaps the most important living Sunni jurist Wahba Zoheili at the University of Damascus in which he says that the jihad or struggle is now only a struggle against the distortion of Islam The real meaning of the struggle is not a warlike struggle but the struggle to convert He thus offered a complete reinterpretation of the high tradition and many of the ulema accepted his conclusions Nevertheless there was also the development of a contrary tradition which really is well represented by Ayman Zawahiri He is the right hand man of Osama bin Laden and really the most intelligent person as far as I can figure out in that circle and probably the author of most of Osama bin Laden s response or fatwa He represented a new generation His grandfather was a sheikh of Al Azhar one of the great positions in the old scholastic establishment But he himself was a surgeon not trained at all in the religious disciplines He presumably thinks to himself that I can interpret the law as well as my grandfather I can just sit down read the book and come to my own conclusions He is really typical of a whole generation of people who no longer respect the scholastic tradition In the fatwa co signed by him in 1998 after the failed US attack against the al Qaeda camps He says in essence Yes we know about the scholastic tradition but we follow what we like in that tradition The fatwa names several pre modern jurists without actually recounting their arguments and finally quotes one jurist Ibn Taimiyah He explains in effect that This jurist says that in the worst case the person who is defending himself against armed attack or an assailant has a right to strike around him with any kind of force necessary to defend himself In other words a theory had been built which only finds it culmination actually in this particular circle that people in the Muslim world who are true believers are involved in hand to hand combat with the rest of the world Therefore any terrorist act is like striking back at an assailant in such a hand to hand combat As the fatwas from Osama bin Laden continued and more people gathered in his circled or maybe in the circle of Zawahiri additional accusations about the million supposed children believed to have died in Iraq as a result of the American blockade and about Hiroshima and Nagasaki arose Who are the Americans Osama bin Laden s followers ask to talk about collateral damage I will only one very brief prescriptive comment I wish we had announced every day of the war that we would stop the bombing the minute Osama bin Laden and the people representing his entourage were surrendered I don t think he would have been surrendered but I think it would have strengthened our moral position immensely The US made such a statement at the beginning and I think it might have even strengthened our moral position to have made specific statements about who would try them that they would be given for example to the court in the Hague where there are Muslim jurists I do not think we would have avoided the war but I think it would have given the US a clearer moral high ground And secondly I wonder if it is not better to think about this as a moral cause rather than a moral war I have never been quite sure of the war rhetoric I know that it is a very good way to rally people and it puts us in contact with our heroic past and similar dastardly deeds such as Pearl Harbor but I am not sure that it is really a correct analogy At that point I will stop QUESTIONS ANSWERS Berger Thank you very much I am going to start by asking one question of each speaker and then we will throw it open to all Let me ask on the question of the probability of success in Christian tradition Father Hehir what are the grounds used for that category That is to say is it a matter of compassionate concern for one s own people and or the other side and therefore moral or is it pragmatic And how would such an assessment be different from for instance elements of the Powell Doctrine that one needs to have a very clear sense of what the political objective is in a war how achieve that end how to get out and in his case how to preserve the integrity of the institution of the army that is probably not a traditional Christian concern Hehir I do think and Michael Waltzer again I will refer to him has made the point that the language of ethics and the language of strategy are at least analogous In other words you find a lot of similarity if you read strategists just straightforwardly and then if you read moralists They are not identical by any means And indeed the trick most of the time when you are doing the kind of thing that I do is to try and make sure that the language of strategy does not overwhelm the language of morality But there is a kind of inner logic to the two In terms of the criterion of success there are different ways of thinking about the rationale behind it One way to think about it is that war should not be used fecklessly force should not be used fecklessly That is to say you should not undertake an enterprise which involves at its very heart the conscious purposeful taking of human life if in fact you do not have any way to relate ends and means You are simply going to be killing people for no purpose whatsoever There was a way in which in the midst of Vietnam to a lot of people that is what it looked like was going on that we were killing people to save our reputation or to save some vision of global struggle but there was no purpose there was no endgame to it there was no connectedness to it And so on the one hand moral possibility of success is an argument against using force without purpose without rational connectedness of ends and means The second understanding of moral possibility of success is that particularly political authorities who have the right and duty to declare war should not send people to death needlessly in the sense of suicide for example For example I have heard people in the 1970s and 80s make the argument that all the criteria for just war would have worked for the black population in South Africa except possibility of success if the blacks were to take on the South African army they would be slaughtered So you have all these kinds of arguments but no possibility of success That is a second reason First connect ends and means and second be sure of the possibility of success Now there is a limiting principle here This is usually referred to as the moral possibility of success It does not mean that war has to be a sure thing or that every time you use force you know you are going to be successful There is another element here It is the kind of thing you saw in the Polish Ghetto where people say In the name of certain values I will put my life on the line even though there is virtually no chance I am going to succeed So that is a limiting condition on success but the heart of the argument is that you do not use force without purpose without consideration of what one might call the virtue of prudence Berger Thank you For Professor Mottahedeh this is perhaps an idiosyncratic question but it has been bothering me for some time There have been voices I have heard quotes from scholars in the Islamic world saying that Osama bin Laden certainly does not have the authority to issue the fatwas he has However as I understand it his primary reason in the 1998 fatwa for the virtual declaration of war against America has to do with the presence of non Muslim troops and he is particularly bothered by female troops on the soil of Mecca and Medina What is the reaction generally in the Islamic world and among contemporary Islamic scholars to that as a reason Mottahedeh I don t know that he has specifically referred to female troops although I am sure he is bothered by their presence As to the question of authority just as Professor Hehir has said that you have to have justly constituted authority in the Christian world so in the Islamic scholastic tradition you have to have justly constituted authority to declare war One of the things that Osama bin Laden keeps saying is that for eighty some odd years there has existed no Islamic polity So what he is in a sense saying is that I have the authority But sometimes in fact quite frequently he uses the strange ploy of saying I am working in the only real Islamic state of the world run by Mullah Omar and he calls him the Commander of the Faithful So he more or less is hiding behind Mullah Omar to say that he is working under the aegis of the only justly constituted authority Mullah Mohammad Omar by everybody s count is an extremely uneducated fellow Osama bin Laden even with his education in engineering is probably better acquainted with the Islamic scholastic tradition So it is strange that he has to defer to him On the second question about Saudi Arabia it is clear if you look at the fatwa in Osama bin Laden s fatwa he begins with a preoccupation with Saudi Arabia and only secondarily with Palestine although the question of the Palestinians is always there and the preoccupation with Palestine grows as he reaches for a larger audience Muhammad supposedly said on his deathbed and there are two versions of this Clear the Arabian Peninsula of non Muslims or he said Clear the hījaz the province of Mecca and Medina of non Muslims Overwhelmingly tradition has understood the Prophet to have said the second There was a huge Jewish community in Yemen right up until 1947 There is still a small Jewish community there Nobody has ever challenged its right to be there But this change has to do with the evolution of a modern peninsular wide sense of Arab Muslim identity It shows bin Laden to be a child of the polity of the Saudis that saw itself as special guardians of Mecca and Medina and somehow different from every other Muslim polity Among his fellow Saudis there is a lot of sympathy for this complaint Berger I have one follow up to that Is there a difference in how that particular cause is viewed in the Shia world and the Sunni world Mottahedeh There is only one Shiite nation in the world and that is Iran The Iranians are not particularly worried about the presence of American troops for any reason except their own safety With American troops in Arabia and in Afghanistan they feel surrounded Berger Thank you Now if you would like to come to the microphone and ask questions feel free Question I am not quite sure from your presentation Father Hehir the difference between moral exception and rationalization especially in the case of US strikes against Afghanistan Why do you think the cause is just And how would you explain the justness of this cause to a Muslim both in the US and abroad And finally before the strikes started at the end of August did you argue for or against the use of force and has that view changed Hehir I think just cause is fairly narrowly located in this case and it is due to the attack that took place and the promise that Osama bin Laden made that there would be other attacks So I see the use of force as a deterrent It is a response to the attack and a deterrent against future attack And I think that is a legitimate moral use of force If you are promised that there could be large scale damage done to your population that limited use of force is acceptable How would I explain it to a Muslim I think there are two broad areas whenever you deal with the ethics of war One is the cause and rationale and policy issues that go around it I suspect that that would not be an area in which you could be very convincing at least to many Muslims because large arguments will be lodged against US policy in the Middle East or other policies But second I think on the means question I could get someplace First of all the way the debate goes in the United States about Was this attack due to policies the US pursues or patterns of US actions I think there were loads of things wrong with US foreign policy before September 11 that ought to be corrected and I think there are loads of things that are still wrong that ought to be corrected I don t think any of those things justify a direct attack on those two buildings with civilians in them And the way I would try and find common ground with Islam is precisely to pick up the point that Roy made that there is an extended area of Islamic ethics on war on means Part of the problem usually with terrorism not always but usually is precisely that it finds it hard to stay within the context of means in terms of who gets attacked and under what circumstances Did I advocate going to war against Afghanistan before the attack No I thought there were loads of different questions regarding Afghanistan The main thing I would say about Afghanistan before the war was that the United States did not live up to responsibilities that I thought it had to do something about Afghanistan after the Soviets left but I did not see reason for war In the same way that I would not have advocated the use of force against Saddam Hussein until he invaded Kuwait Once he invaded Kuwait that constitutes aggression across a national boundary I think that is an issue of international order and I think you need to respond to it Question I had a couple questions One is about Palestine Are there ways that Palestine can justly use force against Israel considering that it is not a state Does Arafat have the authority to declare war or is it a smart decision not to call it a war when they are contesting land The other question is the morality of the draft under the just war framework Why is it morally prohibited to attack noncombatants of your adversaries and still responsible to send your own somewhat innocent citizens into combat and potentially death Hehir Let me take the second question first The reason why you cannot attack noncombatants or civilians or the reason why you cannot go to war against the whole society is rooted in the very first step Making the argument that war fits within the moral universe is not an easy case By nothing I say do I want to communicate that this is a self evident judgment that war fits within the moral universe I think it is a tough case I think you have the deck loaded against you particularly if you go beyond the moral universe and say you fit within a religious tradition that is wider than the moral tradition that holds all kinds of values about turning the other cheek and going the extra mile This is not an easy case to make If you are going to be able to make the case that war fits within the moral universe and maybe within the religious universe it has got to be a very narrowly precisely defined argument And I think that narrowly defined argument is that people embodied in political communities do things that are objectively wrong Call it aggression for lack of a better term If you make the case that you have a right to stop aggression in the moral order then only those who commit the aggression become subject to attack Therefore you cannot attack a whole society So this is the argument against not attacking civilians It goes right back to the fundamental rationale In other words by attacking civilians purposefully you threaten the whole rationale for the ethic because you are now involved in unlimited war rather than limited war Secondly what about the draft The argument that war can be undertaken in moral terms is because the common good requires it That is to say there are moral values being violated The argument usually goes that political authority has the right to defend the common good and included in that right is the expectation that it can call citizens to minimal civic duties minimal not meaning small but meaning basic And that is what the draft is about I think you should make provision for conscientious objection but the draft is about a sense of loyalty and belonging to a political community and understanding that one has certain obligations to it The draft is often put in the same category morally as taxes We have responsibilities to a political community to contribute to its welfare The first question was do Arafat and the Palestinians have the right to use force against Israel You would have to distinguish the cases it seems to me In principle I don t think it has the right to use force against Israel just because Israel is Israel Obviously there are contested issues since 1967 about boundaries territory and property You could make a just cause argument on that front You could not make a just cause argument and then combine it with means that are illegitimate in the same way that the Israelis having a right to defend certain areas and territory cannot defend them using unjust means Question I will direct this question to Professor Hehir You both talked about the moral proscription against causing civilian casualties and yet in every war that I am aware of in this century we have done precisely that And the reason we have done it is because there is another moral assumption which is that the lives of our troops are more valuable than the lives of the opponent s troops even though in both cases they are 18 year old kids and they are innocent in that sense But there is an implicit and sometimes explicit understanding that the life of one American soldier is infinitely precious compared to the lives not only of the opponent s soldiers but also of their civilians And therefore we dropped the atomic bomb on Hiroshima And therefore we bombed Vietnam from an altitude of 35 000 ft where you could not possibly distinguish between enemy troops and civilians Hehir There several necessary distinctions we must make and you have just highlighted one that we need to make more precisely I would not say that it is a moral indictment of war if citizens get killed It is a tragedy that citizens get killed The moral indictment is when citizens get killed as a result of being purposefully targeted in the course of the war when there is a purposeful intent to take civilian life That was true at Dresden That was true in the German bombing of London That was true in Hiroshima George Bundy s really remarkable history of the nuclear age has this interesting chapter on the decision to drop the atomic bomb And he says that when the time came to make the decision about Hiroshima no one absolutely no one in the upper reaches of the American government even raised the question about attacking civilians He said that the reason this was the case was that that barrier had been crossed already in Dresden and Tokyo It highlights to me the enormous question of keeping alive moral restraints Because if you do not keep them alive in the policy discussions in the minds of citizens and in the minds of policymakers then that is when the logic of strategy overwhelms the logic of moral argument So I would not want to say that every time a civilian gets killed it is morally wrong I would say civilians a should never be directly targeted and b their lives should be preserved insofar as it is possible under the criterion of proportionality Your other question do we kill civilians because we always value American lives more I would go about in the following way I think every life is of infinite value Therefore you only can kill when you have an explicit rationale as I have tried to lay out Secondly it is the responsibility of political authorities to try to reduce the casualties on their own side Thirdly that goal of protecting your own troops must be pursued within the context of a set of other restraints You cannot protect your own troops at the price of consciously killing civilians This is why the bombing of civilian centers in the name of for example protecting against your own casualties would be wrong At the same time it is not wrong for political authorities to try to protect their own troops But they have to do it within limits You then get into very large discussion about how you do that I have had people in class in the last two years who were pilots in Kosovo who object strenuously to the argument that if you bomb from 15 000 ft or 30 000 ft you are less moral than if you bomb from 5 000 ft Their argument which is empirical and not moral is that at 15 000 ft generally immune from anti aircraft fire they can see the target whereas at 5 000 ft flying at 700 mph they cannot see anything But that is an empirical argument and not a moral argument Question The question I would like to address has to do with the issue of harboring terrorists going after those who harbor terrorists who give protection to terrorists This is a problem certainly with respect to terrorists that are nongovernmental And it comes up as a problem it appears to me in dealing with the targeting of the Taliban the ethical problem of dealing with the targeting of the Taliban but also in future situations in which the United States might feel compelled under the Bush doctrine to go after those who harbor terrorists What kind of a problem is that for the just war ethic and how can that be dealt with either in the Islamic tradition or in the Christian tradition of just war Mottahedeh Well it is very interesting During the Iranian hostage crisis I wrote an article about why from the point of view of Islamic law in general and Shiite law in particular Khomeini should behave in a slightly different way And it has to do with the principle which is very strong in Islamic law of safe conduct If someone comes to your territory even on the mistaken presumption that they have safe conduct and it is found out that they are not wanted they are to be led to the borders without harm So that is why I said that from the point of view of the Islamic moral dimension I think it is terribly important that we continually announce that for the surrender of Osama bin Laden and his entourage we will cease any hostility toward any portion of the Afghan people I think that was one of the principles that should have protected our diplomats in Teheran Safe conduct is also one of the interesting ways in which Islamic law was violated on September 11th Anybody who has entered the United States with a visa has absolutely no right to do any hostile act to the United States So the majority were violating the Islamic law as to the conditions of safe conduct in even this very primitive sense Hehir You really have to reshape the ethic when the nature of war changes or the nature of the challenge changes That is very clear in the nuclear age There is a re doing of the ethic in order to think about questions like deterrence which is not how you fight the war but what you do when you are not fighting the war I think there is the same kind of thing going on now When you look at the kind of policy problem we face you can take the president s definition of it to start the discussion You are facing a transnational terrorist network His argument is that he is going after the network and going after the states that harbor the network I think you have to break that out into 3 different categories and test it out in different situations First is the actual group of terrorists themselves What kind of evidence do you show the world that they in fact fit that definition Evidence here I think is really important to the credibility of the moral argument evidence of what you are talking about Second is the relationship between the terrorist group and the state I think in Afghanistan the case is fairly clearly drawn I think you could draw credible links in Afghanistan Beyond Afghanistan I think that question is going to get much more complicated For example if you say there is a state and a terrorist group in the state to automatically say that state is harboring terrorists seems to me to be a jump They may be putting up with what they cannot get rid of They may know or not know a lot about what is going on Think of Lebanon in the 1970s On Lebanese soil there were loads of terrorist groups The idea that the state of Lebanon had the capacity to do anything about that I think is very problematic So if we have a Lebanon case again what are you going to do with that There are other situations like the Philippines where clearly we are not going to say that the state is at fault but you might argue that there is a terrorist group linked to al Qaeda in the south of the Philippines So I want to distinguish between the terrorist group the state involved and the connection between the two And even if you can define that linkage precisely there still is the third group wider civil society which cannot be swept up either into the state or the terrorist group And so once again you are back to noncombatant immunity and civilian society The final point is that the argument about what is next after Afghanistan it seems to me is a highly highly complicated problematic argument You are not going to take this show out on the road and start moving through 60 countries You would become international disorder in the name of fighting for order So the question is what do you do The Iraq debate is interesting in itself There are clearly some people in the Iraq debate who have been waiting to hit Saddam Hussein for 10 years and want to use this as the occasion That seems to me not to be justified If you can make specific cases about terrorism etc it is a different question But it seems to me there is a very large question about what is beyond Afghanistan and what has been labeled a worldwide campaign What linkage and what steps Question I have a fairly simple question In either the Christian or the Islamic tradition can terrorism be morally justified To give some thought to that question let me ask for example in the situation where a nation with very great power assaults or puts at risk a nation with much less power is a terrorist response considered proportionate And also US policy now seems to regard the development of weapons of mass destruction as a form of terrorism Is holding those weapons and using them to establish our military authority over the rest of the world a form of terrorism Mottahedeh Well first of all I would like to point out that we have an example of terrorism in the Bible Samson brings down the temple of the Philistines without any concern for collateral damage and nobody seems to have noticed it or criticized him for it That aside can terrorism be justified within the Islamic tradition You know a tradition can be put to any use you want There was a point at which people said that suicide bombing had something to do with the traditions of Shiism because during the war between Iran and Iraq many Iranians participated in suicidal attacks and the Shiite Hizbollah in Southern Lebanon seemed to be inclined to do this kind of thing And then it became clear that these attitudes had nothing particularly to do with Shiism Such suicidal attacks are currently undertaken by people in the Gaza Strip where the populations consists of Sunni Muslims The Real IRA has undertaken such attacks without any particular consideration for Catholic doctrine I don t think we should say Can the tradition justify it Any tradition can be put to extra work to justify almost anything But is the learned Islamic tradition as a whole largely accepting of terrorism No There is a somewhat related question which has always bothered me and I feel I do not have an answer for it People say If nations use atomic weapons do not other nations have the right to use the poor man s atomic weapons such as biological warfare Of course I am strongly against the use of both but I do think we face difficult moral questions when we assume that we have a right to weapons of mass destruction but the have nots have no right either to these weapons or their equivalents Hehir Definition here is part of the debate that we are in There is not a consensual definition of terrorism People have struggled with it in different ways The way I would try and get hold of the question is to try to go back to some of the categories of just war Who has the authority to

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    in civilian courts Secretary Rumsfeld s dilemma is that if Al Qaeda detainees are common criminals they should be tried in American civilian courts but if they are prisoners of war they should be tried in courts martial Either way they have full procedural rights and access to appeal in civilian courts If they are sent to foreign courts or international tribunals they could not be held indefinitely and they might not be subject to the death penalty To prevent that from happening the Defense Department has tried to create a new third legal category unlawful combatants being held offshore in American naval facilities on Guantanamo who the Government suggests may be held indefinitely without procedural rights under either human rights or humanitarian law and who may be tried on little evidence before military commissions whose rules have not yet been announced And why Guantanamo Because under existing U S law some U S courts have ruled in highly controversial precedents that the United States Naval Base at Guantanamo Bay Cuba where many of the detainees are being transferred amounts virtually to a rights free zone In 1994 when large numbers of Cuban boat people were held on Guantanamo the Eleventh Circuit rendered the extraordinarily broad ruling that these alien detainees on Guantanamo are without legal rights that are cognizable in the courts of the United States In short they are human beings without human rights Read literally the panel s holding would permit American officials deliberately to starve alien detainees to subject them to forced abortions and sterilizations or to discriminate against them based on the color of their skin Moreover as aliens held in detention outside the United States it is not clear under existing precedents what legal right they might have to seek a writ of habeas corpus although some lawyers in California have begun habeas proceedings in the last few days In my view it was a huge error for the United States government to start bringing detainees to Guantanamo without adequate facilities plans for lawful tribunals or any indication of how many the United States intends to hold for how long In surveying our justice options the United States should have more carefully distinguished between its most pressing concern how to redress and prevent the murder of Americans on American soil and much broader efforts to support the creation of an enduring post Taliban system of justice in Afghanistan The United States should have adopted a simple clear division of labor American prosecutors and judges should try crimes committed against Americans on American soil in American courts while experienced foreign and U N lawyers should address crimes committed against Afghans on Afghan soil The U S should have brought near our shores only proven Al Qaeda suspects who could be tried in U S courts by seasoned federal prosecutors using legislatively mandated procedures to handle classified information Everyone else should have been tried where arrested By making Guantanamo a new offshore detention facility for terrorists we encourage the Russians and Chinese to try their Chechen and Uighur terrorists on their offshore islands How can we object to Castro granting his detainees no rights in the Communist part of Cuba when we claim our detainees have no rights on the American zone in Cuba When the Chinese or Russians try Uighur or Chechen Muslims as terrorists in military courts our diplomats protest vigorously and the world condemns those tribunals as anti Muslim So how can we object when other countries choose to treat U S military commissions the same way My point is simple as this war on terror wears on a transcendent issue in the debate over U S foreign policy will be what kind of new world order is emerging and what is America s role in it America s choice is not isolationism versus internationalism but what version of internationalism will we pursue a power based internationalism in which we get our way because of our willingness to exercise our power whatever the rules or a values based internationalism in which our power derives from our fidelity to the values of democracy human rights and the rule of law As Americans we need to extend to the international institutions the very values and institutions that we treasure so much at home As the President said last week America will always stand for the non negotiable demands of human dignity the rule of law limits on the power of the state respect for women private property free speech equal justice and religious tolerance What that means is that we have to respect human rights even the human rights of terrorist killers that we need to speak out forthrightly against human rights violations whether they re committed by terrorists or allies or our own government and we have to reaffirm loudly that it s never unpatriotic to question what our government does in our name particularly in time of war If the globalization of freedom is going to triumph over the globalization of terror in the long run we as a nation conceived in liberty and dedicated to certain inalienable rights including liberty and justice for all must respond not just with power alone but with power coupled with principle Norman Dorsen There is now a cottage industry on the topic of this panel but I do not find it an easy subject to address beyond rhetoric and the taking of predictable positions What is plain is that the preservation of national security and the protection of civil liberties are both values of a high order Kofi Annan secretary general of the UN recently said We should all be clear that there is no trade off between effective action against terrorism and the protection of human rights In my view this is only partly true It is possible to accommodate the values to some extent but in other respects there is a trade off between national security and civil liberties Before addressing this point I have some preliminary observations Initially it is important to recognize that the two competing values are neither absolute nor measurable It is very difficult to estimate either the exact security benefit that will be achieved from a particular governmental initiative or its precise cost to civil liberty Among other things people put different values on particular liberties free expression personal autonomy privacy and freedom from arbitrary constraint and government actions can have unintended consequences for both security and liberty Secondly while most of us assume there is significant value in civil liberties the American people have frequently been willing to compromise them in the face of real or imagined threats to security including World War I censorship the post World War I Palmer Raids the Japanese relocations during World War II and the many violations during the McCarthy era and the Viet Nam War The public almost surely has the same mindset today Perhaps the best indicator is congressional passage of the Patriot Act in October by overwhelming majorities without anything close to an ample opportunity to debate or even examine its many problematic provisions In December the publisher of the Sacramento Bee was hounded off a platform at a California state university when she suggested that concern for constitutional rights should temper the most extreme reactions to terrorism In particular she was loudly booed for urging that we safeguard rights to free speech against unlawful detainment and for a fair trial and the audience cheered when she wondered what would happen if racial profiling became routine At about the same time a survey taken by the American Jewish Committee showed that a majority of Jews traditionally one of the most reliably liberal segments of the American community are content to see constitutional principles abridged in order to increase the investigative powers of law enforcement agencies These events bring to mind a longstanding maxim of the American Civil Liberties Union often repeated half jokingly that if the Bill of Rights were put before the American people in a referendum it would not pass I doubt if my friends at the ACLU are joking about this now The public s attitude can largely be explained by fear fear for the country in the abstract and also a more focused fear for their families friends and themselves A second explanation derives from the public s awareness of the awful responsibility that officials bear for the nation s safety While I shall suggest shortly that the Administration has failed to accord civil liberties adequate respect since September 11 I do not minimize the pressure on it to do everything feasible to protect the country and to avoid the inevitable political retribution that would follow a terrorist action costing American lives that the public believed was preventable by law enforcement measures In this light it is not surprising that the Bush administration has taken aggressive steps to further the nation s security and protect itself politically Unfortunately in doing so it has simultaneously compromised civil liberties There are at least four sets of problems two or possibly three of which could be solved pretty easily if the will were present To this extent Mr Annan seems correct in these matters there would be no or little cost to security if civil liberty were granted greater protection The fourth area is more complicated It would require a congressional remedy and a trade off between security and liberty is inevitable The first issue concerns free expression Dean Kathleen Sullivan of Stanford Law School said in November that the government s action to stop dissent or questioning of national policy has been notably restrained compared to the Civil War and the World Wars Perhaps but there nevertheless have been conspicuous attempts to impede open and full discussion On September 11 itself the news media that criticized the president for not immediately returning to Washington following the terrorist attacks received warning telephone calls from government officials Those who criticized the telephone calls were then publicly rebuked Soon thereafter the National Security Advisor called the networks and print media urging them not to run Osama bin Laden s taped statements The asserted justification was to thwart bin Laden s possible coded messages but it seems clear that the Administration simply did not want the American people to hear his message directly A little later Attorney General Ashcroft during the pendency of the Patriot Act in Congress said that critics of the bill were giving comfort to the country s opponents and that every day of delay in passage made terrorism more likely Such statements are not exactly designed to further the deliberative process Whether or not these incidents amount to an improvement over prior government interferences with free speech during hostilities they are wrong and there is a simple remedy for the Administration to take that would not impair national security Stop A second area of concern is the military tribunals that President Bush authorized by executive order that is without congressional approval This territory has been heavily plowed by commentators and there are many potential civil liberties problems no juries majority verdicts military judges in the chain of command rather than civilian judges diluted rules of evidence and the possibility of double jeopardy Beyond these issues there is an overarching question of who will or might be tried by these tribunals If they include aliens who are lawful permanent residents of the U S this would contradict the established principle that such persons are entitled to the protection of the Constitution If it is prosecution of the Taliban and al Queda captives whether or not they are denominated unlawful combatants there are complicated questions under international law that even at this preliminary stage are causing embarrassment to the U S among our European allies It is unlikely that the president will revoke his order establishing the tribunals but there is hope that some of the problems may be cured by regulations that are being prepared and that the tribunals will be used sparingly If these hopes eventuate the trade off between national security and civil liberties will be kept to modest proportions or even eliminated altogether A third area of concern represents the most grievous violation of civil liberties since the terrorist attacks the secret detention of more than 1100 aliens all or almost all from the Middle East The government has refused to release their names or to charge them with any crime or until very recently permitted lawyers to advise them And the Department of Justice has announced that it will electronically eavesdrop on conversations between the lawyers and their clients in plain violation of the venerable lawyer client privilege It is a core element of a free society that the people have a right to know who is arrested and for what reason and for a judge or magistrate to decide openly if the detention is justified The only comparable invasion of individual liberties in recent decades is the forced removal of Japanese Americans from the West Coast in 1942 The present detentions like the earlier ones have met with surprisingly little public criticism Perhaps this is the quintessential illustration of the public s privileging of national security over civil liberties even when the violation of civil liberties is stark and the benefits to national security unknown The government would no doubt claim that these detentions serve a national security end and perhaps there are good reasons to hold at least some of the aliens in custody But this proposition should be tested under the rule of law The fourth and final example is the Patriot Act itself As I have suggested the process that led to its passage was not a model As far as is known the administration did not carefully analyze what went wrong before September 11 and identify what emergency powers it would need to prevent additional attacks or even whether existing powers are inadequate It refused to limit the new powers to the current threat or to meet with independent experts to discuss how to draft provisions that would safeguard civil liberties And I am advised the final bill was drafted in secret meetings there certainly are no conference or committee reports to explain the Act s provisions Beyond process it would be possible although not in the time available to detail the many provisions that could abridge free expression and privacy not merely of aliens but of American citizens Instead of doing that I shall take a different tack one that acknowledges the unique current threat to the United States and its people from an organized determined and violent enemy international terrorists It is natural and appropriate for the government to combat this danger aggressively But equally the government s response to safeguard national security should be no broader than the threat requires In that way the trade off between civil liberties and national security could be relatively confined This result would be achieved only if the Patriot Act were limited to the essence of the terrorist threat and not applied to other crimes Let me briefly offer three examples The Act provides for the sharing of traditionally confidential grand jury testimony with government officials and law enforcement officers in ways that previously were unlawful Such material is unfiltered often unreliable and acquired from witnesses who testify without counsel If there are credible factual affidavits that a case involves international terrorism directed at the U S and its people it might be appropriate to share grand jury testimony but not otherwise Similarly the broad invasions of privacy authorized by the Act through wiretapping electronic eavesdropping and the like without traditional showings of probable cause of a crime might be appropriate if there are persuasive affidavits of international terrorism but not in other criminal cases A final example involves alleged clandestine intelligence activity by an individual on behalf of a foreign power Unless the matter meets the standard of aiding and abetting international terrorism the normal criminal rules should apply These rules have long served the country well have led to the successful prosecution of wrongdoers in numerous cases including the 1993 World Trade Center bombings and were not serious candidates for congressional revision before September ll For my approach to succeed there would of course have to be a careful definition of international terrorism directed against the U S and its citizens Ideally in times like these Congress and the courts could be counted on to reverse or invalidate unlawful actions of the Executive Branch But history has abundantly shown that during war or other hostilities there is little stomach to block presidential initiatives even if later in calmer times Congress or the courts may choose to rectify wrongs or compensate those who were injured On the other hand it is good news that neither President Bush nor Attorney General Ashcroft has asserted as President Nixon once did that only the president can fix the line between constitutional and unconstitutional conduct when national security is at issue Nor have they said as Nixon did that when the President does it that means that it is not illegal In sum I think the country and its responsible officials should have the necessary tools to fight international terrorism directed against our country At the same time I deplore the potential erosion of longstanding constitutional safeguards when there is no solid basis for broad new powers Of course if evidence emerges that they are needed in one respect or another that new situation should be evaluated carefully Until then we should follow a venerated axiom of Chief Justice John Marshall that government should exercise the least amount of power necessary to achieve its desired end In that way we will protect the nation s security without undermining the Constitution RESPONSES Koh I think we all agree that we are in a situation of changed circumstances but at the same time we don t want to exceed good judgment So the question is how do we operationalize the new reality Let me just mention four points prompted by my colleagues remarks The first is the shocking difference between the domestic and international perception of what we are doing If you re in the United States everything we are doing seems alright A kind of patriotic correctness has settled in which means that our papers and media are reporting quite little about protests that are going on abroad When I went to Canada last week I was stunned by what was being published The papers were full of criticisms of our activities on Guantanamo During that period I flew back to Boston and none of this furor was even reported So there s a sense in which our own media is screening us from external criticism and creating an orthodoxy of appropriate patriotism which we need to consider and to challenge The second point goes to the role of force Here my own rule of thumb has been that the more massive the more indiscriminate the more unilateral the more prolonged our use of force the more likely it is that it will kill innocent civilians and jeopardize our cause Our defense department has made admirable efforts with certain unfortunate lapses to obey these rules Here I would distinguish between international norms and international institutions I believe that our use of force in this circumstance is lawful and that to the extent to which we are going beyond self defense to other kinds of forms of humanitarian protection to prevent our civilians from being attacked that could be justified in terms of international law It does not necessarily mean operating exclusively within the UN or chapter 7 framework So I think that we have to obey International norms but whether that always means operating within international institutions may be another story With regard to the role of justice the third point there are three aspects First profiling We need not adopt indiscriminate racial profiling I think that we can do behavioral profiling effectively If you cross in England or in Canada they ask you Why are you traveling today Does your story hold together They ask you to produce documents that show that you are who you say you are and that what you are doing makes sense given your own stated objectives They don t take every fourth person out of line and make them take off their shoes even if one of them is a little old lady from Pasadena What we have adopted instead is a kind of overbroad dragnet approach that causes inconvenience while reaping little in terms of improved security Second on the detentions on Guantanamo I agree that when we bring people to Guantanamo they become our responsibility and if they are our responsibility we have to treat them according to our system of laws and rights The notion that our government officials can treat them with untrammeled discretion with no entitlement on their part approximating rights is a fundamentally anti American concept On adjudication I really do think American courts should deal with those cases which involve attacks on American soil American property and American citizens Those are cases that have traditionally been heard in US courts for the last 200 years Pirates terrorists and others have all been tried in our courts Those people who are being held in Afghanistan and are being charged with crimes in Afghanistan can stay there until a justice system is created there just as is being done in Sierra Leone It is only those people with whom we can establish credible connections to acts on or against our citizens or our soil who should be brought here and should be tried in our courts Bin Laden has been indicted in our courts already and I have no problem with trying him here The three people who have been charged so far Zacharias Moussaui in Virginia Richard Reid and John Walker Lindh have all been indicted in U S courts which to my mind sets the bar extremely high If those people are going to be charged in American courts what do you need military tribunals for I think the prospect of setting up tribunals and potentially even punishment and execution facilities on Guantanamo is something none of us want to seriously contemplate The point is credible justice What is important is that we not simply punish but that we punish in a manner that makes it clear that we are administering credible justice Military tribunals simply cannot deliver that no matter what efforts we make to tinker with them and make them look better to the world The fourth and final issue is legal process which is one that Norman has already highlighted The Patriot Act should really be called the Round up the Usual Suspects act It was something that was created with hardly any deliberation or genuine legislative process Most of the members of congress demonstrably did not read it as they were out of their chambers and offices for anthrax fumigation while it was being done Nobody dissented except Senator Russ Feingold The mood was Run it up the flagpole and see how many people salute And we were shocked at how many people did The same applies to the military tribunal order drafted in haste remarkably overbroad Issue it and then wait to see who protests It turns out in fact that a lot of people do protest and that indeed the Justice Department s own career criminal prosecutors object because they believe that they can fairly try these cases The great danger here is as Norman said that the Supreme Court is unlikely to be a meaningful check in this circumstance Not only are they a more conservative court than the one in the Japanese internment cases but they have been forced to move out of their own chambers because of anthrax I don t think that they are going to be a meaningful check in these circumstances The legislative branch has now proved that it is not much of a check So that leaves it really to the media to our allies and to citizens like us And if the media does not convey these objections that creates a veil of orthodoxy which is very hard to break through That makes it all the more important that engaged citizen forums like this one particularly involving academics with expertise in the subject speak out and make it clear that patriotism means saying what the rule of law and our democratic values require Dorsen Thank you I ll follow Harold and make four points also two of which are basically in agreement with comments made so far The first one is very general It was stressed several times that these are very complicated and new circumstances That is a comment that often is made but in this case I think it is extremely important to recognize Nobody is going to come up with exactly the right answer too quickly And a lot of these things are going to need sustained study and thought and advice a point that I ll get to in my fourth comment The second area where I agree with previous statements is on the more substantive level It was mentioned that three dichotomies no longer pertain There are the divide between foreign issues and domestic issues between war and peace and between security and other law enforcement situations Well it is those very aspects that prompted me to come up with something a little original namely to use some aggressive new law enforcement techniques but only if they are limited to the current threat to the new international terrorism that is worldwide pervasive dangerous and special The current people in the justice department would find my suggestion shocking because it would limit the Patriot Act But I suspect that some of my former colleagues at the ACLU also would find it shocking because I would be giving away more than they would want to give away on that issue But I take seriously the point that this is not just business as usual and that we cannot be wedded too tightly to earlier positions without some flexibility The third point is that I have seen no serious study maybe this study is in process of what went wrong on September 11 th how was it that the terrorists were able to do what they did There are indications here and there that somebody heard that this fellow bought a one way ticket another fellow was taking airplane lessons but he did not want to learn how to land the plane a third that somebody got a call about somebody that was very unusual and should have been checked out but was not etc These are all anecdotal leads I am conscious of the fact that people are human that everyone makes mistakes that law enforcement officials are not immune to that But nevertheless the fact of the matter is that before we know exactly why this was allowed to happen in such a horrifying way we cannot really tell whether new techniques which would involve a compromise of civil liberties are necessary In other words if there are failures in the system that can be corrected without imposing a new system of law that would invade people s privacy and free speech they should be tried But I ve not seen enough evidence Maybe it is too early but I hear the usual signs we don t want to have finger pointing we don t want to put blame Unfortunately in this world sometimes you have to point the finger you have to assess blame and give credit where credit is due Maybe as I say it is too early maybe it is the kind of thing that will be done a few months down the road My final point could be taken to be a political point Maybe it is or maybe I should not try to characterize it On these tradeoffs or non tradeoffs between civil liberties and national security I would feel a lot more comfortable if I felt that the people making the decision in the Department of Justice and the White House were sensitive to civil liberties issues This does not mean that they have to agree with everything that I say or that Harold says but that they are aware of the importance of the civil liberties tradition to the country and the future of if I may not be too bold Western enlightenment values I don t see evidence of that I see a hard edged Agnew like approach to these issues that does not make sense to me Incidentally since I mentioned the word political this is not republican or democrat It has nothing to do with that although in part it is being played out that way The greatest civil libertarians during my period as the president of the ACLU the people we relied on most in the senate were people like Mathias Case people like Javits and many others who were republicans So this is not a question of party label But what has happened is that an unfortunate attitude exists in large parts of the administration Even though they are totally honest and are obviously trying to do the best thing for the country they are not aware of the implications I think of some of the decisions they are making and what the long term consequences are QUESTIONS ANSWERS Kaysen Well ladies and gentlemen the floor is open Question I have one question The panel has been very convincing in saying that the FBI or the Department of Justice are not exactly equipped to deal with countries which are far away and about which we know nothing as Chamberlain said of Czechoslovakia But that leaves me with a question Who should do it Do you really believe that the record of the CIA is so good that one could unleash it on countries like Yemen and Afghanistan and all the others you mentioned with better results than the other agencies that you have dismissed It is a very serious issue Ok let s assume that the domestic law enforcement agencies are insufficient and incompetent But then what Koh Let me respond to the question What do you do with these bad people when you pick them up Suppose it were September 10 th What did we do in those circumstances In the State Department I worked on Sierra Leone East Timor Cambodia Bosnia Kosovo What we did in those circumstances is this those people who were war criminals who had committed crimes on foreign soil against foreign citizens we held them And then we created some sort of system of justice to deal with them In the case of Bosnia Kosovo Rwanda it was an international tribunal in the case of Cambodia and Sierra Leone it was a mixed domestic international tribunal But if their fundamental crimes were foreign crimes on foreign soil we tried them on that soil and made sure that the international crimes were not amnestied as we have tried to do with Foday Sankoh in Sierra Leone So what is different about September 11 th It is that this Al Qaida network working with Taliban and others attacked American citizens and American property on American soil My conclusion is this those people for whom you can establish that case ought to be brought to US courts and tried as terrorists which is what we have done in the past by the way As I mentioned some 26 jihad supporters including members of Al Qaida have been convicted with no acquittals for precisely such attacks such as the attacks on the World Trade Center in 93 and in Tanzania and Kenya in 98 Those people who are picked up as part of the Al Qaeda network in another county like Germany can be tried there so long as their trials meet international due process standards If we seek extradition they can be extradited here That leaves no room for military tribunals To get them here in a military tribunal you have to call them something new to justify not trying them either where they are or in a US court The term that has now been appropriated is unlawful combatants But an unlawful combatant as traditionally understood is someone behind enemy lines who is not wearing their uniform The only two captives who meet that description are Reid who is being tried in a US court and Moussaoui who is being tried in a US court What the Defense Department probably did is simply separate everybody who was an Afghan and left them in Kandahar and brought everybody who was non Afghan to Guantanamo except for John Walker who is an American so they chose to try him in a US court But suddenly all of these people are our responsibility and we are trying to figure out what to do with them while trying to justify not granting them legal rights I think that was a huge mistake The point Norman made is a very important one nobody denies the threat The question is has the response been tailored to the threat and to human rights concerns The dragnet approach is both overbroad and has reaped little in terms of improved security For all of the thousands of people who have been detained the only people who have been charged are either people like Moussaoui who was held before September 11 th or people who have been apprehended since like Reid or Walker The other thousand people it is not clear what has been gotten from holding them other than violating their civil liberties Question It seems to me that the key problem that is forced upon us by this new era is uncertainty with respect to identifying the enemy And as long as that is uncertain all that follows in our procedures is apt to be uncertain Let me be as concrete as possible and remove some of that uncertainty in an academic fashion Among the thousand detainees let us take as an example that about 100 of them are members of sleeper groups dedicated to carrying out acts upon order of the magnitude of the tower destruction There are two extreme possibilities One is that we can hold all of the thousand people in detention and avoid what might happen At the other extreme there may be no sleeper groups present and therefore holding the thousand people detained would be a major violation of human rights So how can one proceed in the interim between these two extremes If there are sleeper groups there the only way that we can for certain prevent their acting is to maintain detention of a number of innocent people So it is this kind of uncertainty that we have to grapple with and it is quite likely that there is no solution But it seems to me much that has been said has not been directed to that point Kaysen Who wants to respond to that Dorsen I ll say a word First of all I think you identify the problem correctly the enemy is more amorphous It is not as if we re in the Second World War or even the Vietnam War where you had a clear enemy even if there may have been fuzzy edges But the premise of your question is if you are not sure if somebody is an enemy you pick them up and hold them indefinitely and the problem will go away because some day that person will die I don t think that premise is sustainable But you could say to me But you yourself have said we have this terrible threat You can t just take that kind of a general proposition Well I assume there are ways of

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