The War on Terrorism in the Courts

• Author: The Honorable Gerald E. Rosen
• Position: United States District Court Judge.
• Pages: 101-112

Page 101

The Honorable Gerald E. Rosen: United States District Court Judge, Eastern Michigan; J.D., 1979, George Washington University National Law Center, Washington, D.C.

I want to address a challenge to judicial independence that directly implicates the most critical of the Judiciary's core independence values, that of judicial review of the actions of the Executive and Legislative branches.

I am speaking of America's war on terrorism and the challenges raised for those of us in the courts by terrorism and our government's attempts to thwart this new and very frightening threat to our freedom, and indeed our very way of life. As we are already witnessing, it is ultimately the courts that will be required to define the limits on, and proper deference given to, the Executive and Legislative branches as each branch attempts to combat what is truly the threat of our time. Just as the threat to world freedom in the 1930s and 1940s was Naziism and Fascism and leaders in the 1950s through the 1980s faced the Cold War challenge of the spread of global Communism, we in the first decade of this new millennium must confront and prevail over the soul-destroying menace of fanatical terrorism. For all of us in government-but most especially those of us in the courts-perhaps our greatest challenge will be to confront this new threat in a way that preserves our most fundamental and cherished values and civil liberties, while at the same time, permitting those responsible in the Executive and Legislative branches to effectively safeguard our lives.

It has become an axiom that September 11 has changed our lives. It is impossible not to be reminded of horrors of that day virtually everyday. Whether it is having to endure enhanced security measures in airports and other transportation facilities or hearing assessments of terrorist threat levels or, worse, reports of new terrorist incidents around the world, or whether it is simply seeing a fire engine roar down the street and being reminded of the unhesitating courage of New York's first responders that bright, sunny, tragic day. Those nineteen misguided fanatics who drove planes into the heart of our civilized life have Page 102 forced us to think about limitations on our own freedoms as we never have before.

Today, almost three years later, emotions from that day can still well up and surprise us in their intensity as we grapple with the enormity of this threat to our future. But emotional intensity is not itself an effective response to terrorism, and the challenge for us is how we will calibrate our responses in a variety of contexts, for the answers will implicate all of the institutions that we rely on to safeguard our lives. Our military; our foreign and domestic intelligence community; our customs, border, and immigration services; our local police forces; and many other institutions all have vital roles to play in defending us against future terrorist attacks. How these institutions respond will be largely decided in the first instance by state, local, and national leaders in the political branches.

But we are ultimately a nation that defines itself by laws and, consequently, the measures taken by the Executive and Legislative branches to protect us will invariably end up being tested in the courts against the substantive and procedural protections of our civil liberties that have become embedded in our Constitution over more than two centuries of jurisprudential evolution.

So, for those of us in the courts, the question is not so much will the war on terrorism change how we protect ourselves from outside threats, but will it change the nature of the constitutional protections we depend on in the courts to safeguard our civil liberties? Inherent in this is the larger question of whether the Judiciary will continue to maintain its independence from the policy branches in the face of public pressure to respond effectively to this very formidable and immediate danger. If these questions seem perhaps overdrawn, just think about some of the issues already being litigated in the courts today. For example, even some of our bedrock constitutional protections such as the right of access to the courts, the right to counsel, and the right of confrontation are being seriously debated when the charge is related to terrorism.

I have been required to reflect hard on some of these very profound issues since September 11 because I presided over the nation's first post- September 11 terrorism trial and considered post-trial issues that raised very serious questions of whether the prosecution met its constitutional obligations to provide the defense-or, at least in the first instance, the court-with all of the exculpatory and impeachment evidence it had in its possession, or was aware of, before and during trial.

Page 103

Suffice it to say that the case raised very difficult questions that caused me to have to think very deeply about how we in the courts must sort out and balance our most fundamental constitutional protections in the context of the need to allow the political branches to protect all of us from this insidious virus of fanatical terrorism that in so many ways seeks to use our constitutional protections and freedoms against us.

I would like to share with you some of the thoughts I had as I presided over this case and observed other terrorism-related cases percolate through the courts. I do so with the obvious caveat that every judge must give in speaking about issues that come before us, namely that my views are very much still evolving and that every case brings its own set of facts and must be judged on its own merits. Therefore, the views I express here are not intended as a finely detailed blueprint for handling terrorism issues in the courts but rather as broad-brush strokes on a larger constitutional palate within which a more detailed picture will evolve.

Let me begin with the most fundamental and basic point: Those of us in the courts must be ever mindful that cases involving charges of terrorism are, nevertheless, still cases in which all of the constitutional rights and procedural safeguards that apply in any other criminal case still attach. We must be ever vigilant to ensure that neither the heinousness of the terrorists' mission-nor the intense public emotion, fear, and revulsion that their grizzly work causes-diminish the justice system by causing judges to be anything other than the impartial gatekeepers of justice that we strive to be in every other kind of case. At the risk of sounding preachy, if those of us in the Judiciary allow ourselves to be caught up in the public fervor surrounding terrorism, to view ourselves as part of the government's war on terror, and to tailor our decisions accordingly, the terrorists will have won an important battle because they will...