This is a beautiful beach where innocent children play. It's also a place where detainees are held indefinitely without charges. Where they're interrogated. Where depending on who you ask, they may have been tortured. It's Guantanamo Bay. This module is about current constitutional controversies. Guantanamo Bay is one of those, and it's a good illustration of a general point, which is that these issues are controversial because there are different ways of looking at them. Honor bound to defend freedom. From one perspective, that's a perfect motto for Guantanamo. We're defending freedom against terrorists. From another, it's shockingly ironic. We're distending freedom by locking people up without charges. Things look one way, and then they look another way. And this is what we'll see about different constitutional controversies. Look at them from one perspective, and one side is right. Look at them differently, and the picture shifts. Which side is right? I can't tell you that. What I can tell you, what we'll see at the very end, is what makes that shift happen. [MUSIC] This week we're going to look at some current constitutional controversies. One about federal power and federalism, that's healthcare reform. One about individual rights, that's the first amendment. And campaign finance reform. And one about federal power and individual rights together. That's today, that's war powers. When we talk about war powers, we're basically talking about presidential power. The President is the commander in chief of the armed forces, and he gets to decide how to conduct wars. But there are some limits on what he can do. Federal laws are one limit. The issue has been debated, but the Supreme Court has indicated pretty clearly, that the President, even acting as Commander-in-Chief, and even during wartime, has to follow federal law. And the Constitution is another limit. Presidents have run up against both these limits in the past. As we saw, back in lecture five, Abraham Lincoln engaged in some actions that were probably unconstitutional during the civil war. Franklin Delano Roosevelt did too. The Supreme Court didn't stop either of them. It did stop Harry Truman, though, during the Korean War. Truman seized the steel mills, and the Supreme Court said he had to give them back. Today, we're going to look at Presidential power in the most recent context where these issues have come up, the response to the attacks of September 11th, 2001. Immediately after those attacks, Congress passed an authorization for the use of military force. That's not a formal declaration of war, but it's basically the equivalent, and it's what we've used since World War II. Congress says to the President, you may wage war against the people responsible for this. All necessary and appropriate force, it says, against the nations, organizations, or persons he deems responsible. So, that happens? The United States military invades Afghanistan, going after al-Qaeda, and the Taliban. They kill some people, and capture others. In other places around the world, US operatives in other governments start arresting terrorism suspects. And then there's the question of what to do with these prisoners. This is where it starts getting complicated, from the Constitutional perspective. There are two main questions that the Supreme Court will end up considering. One is, what the President can do with noncitizens. Do they have any Constitutional rights? Does it depend on where they are being held? The second question is, what about Americans? They do have constitutional rights, we know that, but what are those rights? What if the president thinks that they're terrorists and that they have information that could help stop future attacks? There are several different cases that present these questions. And the story behind them all is pretty complicated. I want to try to give you just the important parts, so what I'm going to do is first tell you what the President's lawyers argued, that is what the position of the executive branch was, and then what the Supreme Court decided. So how about the first question, what rights do non-citizens have? The executive branch argued that noncitizens outside the United States, and that includes Guantanamo Bay, have no constitutional rights. The government can torture or kill them without violating the constitution, and they are not entitled to any opportunity to argue that they are not terrorists. This is what happens to enemies in war time. And the President decides who is an enemy. On to the second question, what about Americans? They do have rights, the executive branch said. They do get an opportunity to explain that the government is making a mistake, but it's pretty limited. They get that opportunity while they are being interrogated. They get to tell the interrogators that they are innocent. They do not get a court, they do not get a judge, they do not get a lawyer, and as long as the executive branch thinks that they are terrorists, it can continue to hold them. In all of these cases, the Supreme Court disagreed with the executive branch. Non-citizens do have constitutional rights, the court said, at least those held in Guantanamo Bay. And Americans have more rights than the executive branch conceded. They have the right to a hearing before some neutral decision maker, not an interrogator, where they get to argue that they are being held by mistake. So the President loses all these cases, which is unusual. In wartime, courts tend to be deferential to the President, but not this time. Why not? Well, one reason is that the President's positions were pretty extreme. We are at war, the President said. And when we're at war, I decide what is necessary. Congress can't stop me. If I believe something is necessary to protect the country, no federal law can stand in my way and courts can't stop me either. That's not a position that you would accept unless you had a lot of trust in the Executive Branch. And the court didn't. In part because of it's historical experience. So this is the second reason. What the executive branch did in the past. During World War 2, we've seen the president claimed the authority to remove the Japanese Americans from the West Coast. Over a 110,000 people, most of the American citizens by birth, forced to leave their homes, 24 hours to prepare, take only what you can carry. They ended up in camps in the interior of the country, in places like Arkansas, Idaho and Utah. The program was challenged in court and the Supreme Court said it was okay. Not the camps, interestingly. Most people think the Supreme Court upheld the detention in camps, but it didn't. It actually ordered the government to release people unless it could show that they were disloyal. But it did uphold the evacuation in the case of Fred Korematsu. >> It was a felony for anyone of Japanese descent to live in Oakland on the afternoon of May 30th, 1942. That made 22 year old Fred Korematsu a criminal. He had defied the evacuation order to stay behind with his Italian-American girlfriend. When he was arrested on this street corner in San Leandro, he knew that the shame of internment would be nothing compared to how his family would react. >> When my grandparents got word in Tanforan Racetrack that my father had been arrested I know that it brought great shame to them. He was treated like the plague. I mean, no one wanted anything to do with him. >> Fred Korematsu had lost his home, his job, and even his girlfriend. He was outraged that an American citizen would be treated like this, so he challenged his arrest. He tested his faith in the Constitution by appealing his case all the way up to the Supreme Court. >> The question of Korematsu was basically how much the court would trust the government. This evacuation is necessary, the government said. Some members of the Japanese American population are disloyal. We don't know which ones. We can't find out in time. So we have to send them all away. And the court said, okay, we believe you. The President is much better at making these decisions than judges are. It turned out later though, that what the government saying wasn't true. There wasn't much reason to think there was a problem with disloyalty in the Japanese American population. Reports by government agencies, including the FBI and the Office of Naval Intelligence, said there was no substantial risk. But the court didn't hear about those reports, because the government didn't reveal their existence. Some people wanted to. The struggle within the government about that issue is a large part of my novel, Allegiance. The reports came out later and Fred Korematsu's conviction was overturned in 1983 on the grounds that the government had withheld evidence from the court. >> Normally, once the Supreme Court decides a case, that's it, the case is closed. But Minami and his team brought the Korematsu case back to federal court under a motion that is rarely used and almost never successful, Coram Nobis. >> Coram Nobis is a way that someone can go into court after they've been convicted and serve their sentence and challenge it to say, this was wrong, the facts were wrong and this court has a duty to correct it. >> A legal historian named Peter Irons had discovered documents proving that government lawyers had hidden evidence from the supreme court. On November 10, 1983, the US District Court agreed. Fred Korematsu's conviction was vacated, it was thrown out. >> So the lesson the Supreme Court learned from Korematsu had two parts. The first was that during times of crisis, we tend to overreact. We do things that aren't necessary that we later regret. The second part was that the executive branch can't necessarily be trusted to be objective. It's not malicious necessarily, it might just be very concerned to err on the side of safety. But the executive branch may not be completely honest with the Supreme Court. In the terrorism cases, Fred Korematsu filed a brief with the supreme court, making those points. And he may have been right. As more information about the people detained in Guantanamo has come out, it's turned out that many of them were not as dangerous as they were supposed to be. Many were, in fact, mistakes. That's why President Bush released over 500 of them. And the government knew this. From the beginning, its internal reports suggested that most of the detainees had no intelligence value. >> In the Guantanamo cases, the court has more or less approached this step by step, said the people in Guantanamo do have a right to go into court. It's trying throughout to say the President does have authority to deal with a real crisis, but he has to be careful how he exercises it. >> The law must insist. The law must always be obeyed. >> Consequences of fear is that you may tend to forget your responsibility to protect your constitutional heritage. We have a compact over time. We have a compact with the founders, those who made this nation, and we have a contract with future generations to keep our freedom and to remember the principles, on which the law is based and to be faithful to them. And fear tends to blind us to that commitment. >> So one thing to say about the terrorism cases, is that the system worked. We learned from our mistakes. The courts are no longer so uncritically accepting of government say-so. But there's something else to think about, because the Supreme Court decisions haven't amounted to all that much in practice. Guantanamo detainees have constitutional rights, the Supreme Court says, and courts can decide whether the government is justified in holding them. So the detainees file suits, trial courts order releases, but most of them never happen. The Executive Branch comes up with reasons not to allow releases. Congress imposes other limits, and the federal court of appeals for the DC circuit, which is overseeing the litigation, decides that if there's any chance people are dangerous, the government can keep holding them. Maybe they're dangerous because they were tortured, and now they hate us. Maybe they're dangerous because they'll tell the world they were tortured and make other people hate us. But if there's any risk, we can keep them. So the other point is this, the Supreme Court has said some lofty things about liberty and constitutional rights, and separation of powers. But things haven't really changed for most of the people involved. It's been 13 years since the first prisoners arrived It's been seven years since the court said the detainees have constitutional rights. It's been seven years since Obama promised to close the detention center. It's still open. There are 116 men still there, costing taxpayers almost $3 million each, per year. The press doesn't write about it anymore. The Supreme Court has more or less given up. It refuses to hear cases from people who have been cleared for release by the government, but are still held. It refuses to hear cases alleging torture, allegations substantiated by a recent report from the senate select committee on intelligence. We are looking forward, not back. We are looking away. And the lesson to draw from this is that neither the Supreme Court nor the Constitution are actually capable of giving rights to people who are deeply unpopular. This is the story of equality, which we saw last week. While society thinks people are different, while society thinks they're dangerous, they will not be treated fairly. It was true of blacks, of women, of gays and lesbians, and we see it now with terrorism suspects. They're usually not Christian. They're usually not white. It's easy to see them as the other. If unpopular people are going to get rights it depends on other people pointing out that they may not be so bad after all, not so different, not so dangerous. They might be terrorism suspects, rather than terrorists. They might be totally innocent. [MUSIC]
