The Volokh Conspiracy - Mary Jo White on Counter-Terrorism and Civil Liberties:

Mary Jo White was U.S. attorney for the Southern District of New York from 1993 to 2002. In that role, she oversaw several terrorism-related prosecutions, including those the 1993 World Trade Center and 1998 U.S. Embassy bombings. Earlier today, she spoke at The City Club of Cleveland on the War on Terrorism and civil liberties. It was an interesting and provocative talk, not least because she was more "hawkish," and less concerned about government overreach, than I would have expected. Following is a summary of her remarks based on the notes I took at the event.

At the outset White said that she believes most of the actions taken by the federal government to counter the terrorist threat — including the creation of military tribunals, the detention of enemy combatants, tightening of immigration rules, passage of the USA Patriot Act and other measures — have been necessary. She further stated clearly that such actions will necessarily impact civil liberties, and she never shrank from this view throughout the talk. While stressing that the executive branch should not get a "blank check," and expressing her support for judicial oversight of federal action (such as in the Hamdi decision), she said that the "gravity of the threat" requires a serious government response, even if that means civil liberties are curtailed on the margins. (She also said that violations of civil liberties are far less today than during prior conflicts.) She said Americans must be "solicitous of civil liberties, but we must survive first."

Although a former prosecutor, White said that conventional criminal prosecutions should play a "small and diminishing part" of the counter-terrorism effort. The pre-9/11 prosecutions of the terrorists involved in the 1993 WTC bombing and other plots were a "great success story," but she nonetheless believes that the criminal law is insufficient to respond to the threat. Further, she said she "strongly disagrees" with those who argue that most of the post-9/11 measures were unnecessary. The terrorists are "smart and getting smarter," and the criminal justice system can only respond in limited ways.

During Q&A, White was a little more critical of current policies, suggesting that the federal government has not made its policies sufficiently transparent. Among other things, she suggested that the executive needed to do a better job explaining the details of and reasons for given policies. Asked about the NSA surveillance program, she said she thought that the President did have the authority to conduct such surveillance, though she said the issue had not been "handled well." Asked whether the War on Terror was sufficiently different from prior wars because it was potentially a "war without end," she said that this magnifies the concern for civil liberties, but it does not make this any less of a "war" to be fought and won.

At the end she was asked about the Zacarias Moussaoui verdict, and whether the alleged "20th hijacker" should have received the death penalty. White said she wished the jury had returned a death sentence, but she also said that the sentencing verdict sent a positive message to the outside world about the fairness of the judicial system — a judicial system, White made clear throughout her talk, that she thought would serve to prevent excessive intrusions on civil liberties during the War on Terror.

UPDATE: Some commenters want to know whether White addressed torture. According to my notes, she did not directly address the subject during her prepared remarks. The subject did come up during Q&A, however. White said it was hard to support torture and other extreme interrogation methods, but she also suggested that wartime exigencies might require it. She said the need to obtain information about future terrorist activities from those who are likely to have such information, such as Khalid Sheikh Muhammed, could make extreme steps necessary. She also suggested that the use of such interrogation techniques, and the fact that any information obtained in such a fashion would be inadmissable in a U.S. court, made the domestic prosecution of such detainees less likely. (Khalid Sheikh Muhammed, for instance, was indicted in the Southern District of New York several years ago.) One thing that was interesting was that White did not attempt to diminish the gravity of her position through word play, such as by arguing that the U.S. only uses "coercive interrogation techniques" that do not constitute torture.

	[Jonathan Adler, May 5, 2006 at 4:26pm] Trackbacks Mary Jo White on Counter-Terrorism and Civil Liberties: Mary Jo White was U.S. attorney for the Southern District of New York from 1993 to 2002. In that role, she oversaw several terrorism-related prosecutions, including those the 1993 World Trade Center and 1998 U.S. Embassy bombings. Earlier today, she spoke at The City Club of Cleveland on the War on Terrorism and civil liberties. It was an interesting and provocative talk, not least because she was more "hawkish," and less concerned about government overreach, than I would have expected. Following is a summary of her remarks based on the notes I took at the event. At the outset White said that she believes most of the actions taken by the federal government to counter the terrorist threat — including the creation of military tribunals, the detention of enemy combatants, tightening of immigration rules, passage of the USA Patriot Act and other measures — have been necessary. She further stated clearly that such actions will necessarily impact civil liberties, and she never shrank from this view throughout the talk. While stressing that the executive branch should not get a "blank check," and expressing her support for judicial oversight of federal action (such as in the Hamdi decision), she said that the "gravity of the threat" requires a serious government response, even if that means civil liberties are curtailed on the margins. (She also said that violations of civil liberties are far less today than during prior conflicts.) She said Americans must be "solicitous of civil liberties, but we must survive first." Although a former prosecutor, White said that conventional criminal prosecutions should play a "small and diminishing part" of the counter-terrorism effort. The pre-9/11 prosecutions of the terrorists involved in the 1993 WTC bombing and other plots were a "great success story," but she nonetheless believes that the criminal law is insufficient to respond to the threat. Further, she said she "strongly disagrees" with those who argue that most of the post-9/11 measures were unnecessary. The terrorists are "smart and getting smarter," and the criminal justice system can only respond in limited ways. During Q&A, White was a little more critical of current policies, suggesting that the federal government has not made its policies sufficiently transparent. Among other things, she suggested that the executive needed to do a better job explaining the details of and reasons for given policies. Asked about the NSA surveillance program, she said she thought that the President did have the authority to conduct such surveillance, though she said the issue had not been "handled well." Asked whether the War on Terror was sufficiently different from prior wars because it was potentially a "war without end," she said that this magnifies the concern for civil liberties, but it does not make this any less of a "war" to be fought and won. At the end she was asked about the Zacarias Moussaoui verdict, and whether the alleged "20th hijacker" should have received the death penalty. White said she wished the jury had returned a death sentence, but she also said that the sentencing verdict sent a positive message to the outside world about the fairness of the judicial system — a judicial system, White made clear throughout her talk, that she thought would serve to prevent excessive intrusions on civil liberties during the War on Terror. UPDATE: Some commenters want to know whether White addressed torture. According to my notes, she did not directly address the subject during her prepared remarks. The subject did come up during Q&A, however. White said it was hard to support torture and other extreme interrogation methods, but she also suggested that wartime exigencies might require it. She said the need to obtain information about future terrorist activities from those who are likely to have such information, such as Khalid Sheikh Muhammed, could make extreme steps necessary. She also suggested that the use of such interrogation techniques, and the fact that any information obtained in such a fashion would be inadmissable in a U.S. court, made the domestic prosecution of such detainees less likely. (Khalid Sheikh Muhammed, for instance, was indicted in the Southern District of New York several years ago.) One thing that was interesting was that White did not attempt to diminish the gravity of her position through word play, such as by arguing that the U.S. only uses "coercive interrogation techniques" that do not constitute torture.