My talk today is titled Citizenship in a Time of Repression and addresses the responsibilities of citizens, including lawyers, in safeguarding civil liberties. I considered whether to select a blander, less provocative title, but decided that I could not do so, for I feel in my heart that our rights as citizens to the truth and to basic liberties are being repressed by our own government, and that we have to stand up against this erosion of our liberties. The ideas and subjects I will discuss are basic: Language, Liberty, Truth, Secrecy, Openness, Repression, Citizenship, and Lawyers.

Today, the word “patriot” is used to name a statute that, in my opinion, stifles liberty. The term “collateral damage” is used to describe the deaths of children and other innocent bystanders. The phrases “weapons of mass destruction,” “immediate threat,” and “imminent threat” were used by our government to justify a war—phrases that have prompted disturbing and unresolved questions about the evidence upon which the government acted as well as about knowledge and intent. To justify unprecedented violations of the international conventions, applicable statutory law, and established military doctrine, even the word “torture” was twisted and constricted in an indefensible opinion of the Office of Legal Counsel, which the United States Department of Justice (DOJ) has only recently withdrawn.

The military commission, created by President Bush in his capacity as Commander in Chief, is prepared to sit in judgment of individuals alleged to be associated with al Qaeda. These individuals face charges derived from a military order issued by the President. In the approximate two years since the President issued this order, there has been a virtual avalanche of legal commentary related to the theory and process implemented to hold such individuals accountable. A cursory review of this body of legal scholarship reveals the tendency of authors to plant their conclusions in one of two polar opposite camps—the clearly illegal camp or the clearly legal camp. Few such commentaries have approached the issue from a pragmatic perspective that seeks to identify shortfalls in the current concept for the use of military commissions and to propose a remedy for these shortfalls that could enhance the legitimacy of the proposed use of military commissions.

The catastrophic attacks of terrorists in Russian cities Kaspijsk, Bujnaksk, Moscow, and Volgodonsk in 1999, and in New York and Washington, D.C., in 2001, as well as ensuing events, “culminating in the victory of the antiterrorist coalition over Taliban in Afghanistan”—they changed the world and “gave hope for the creation of a new, [free and fair] world order.”

It is popular to speak about the radical transformation of international relations’ essence since the end of the Cold War. There is no conflict of superpowers anymore. The United States and Russia are not competing for influence in Europe, the Middle East, and Third World countries. But this new era of cooperation and stability did not emerge. Quite the opposite—the new global threat of international terrorism took the place of superpower conflict as the main defining factor of global and regional politics all over the world.

There has been much talk about “getting inside the terrorist’s mind” in order to better understand the rationale behind terrorist attacks. A typical comment has been, ‘“We may not agree with it, but in their minds, [the terrorists] have good reasons for what they’ve done.’” The idea is that perhaps we should be able to win the “war on terror” by simply using a compassionate approach, so as to understand the cause of grievances of those who seek to justify the deliberate taking of innocent lives.

This Article will discuss both political violence and terrorism and attempt to distinguish these two species of violence. The distinction is important, if it can be made, because the international community in general supports political violence as an adjunct to political reform movements of various types, while this same community generally condemns the species of violence that carries the label “terrorism.” In the end, one is hard-pressed to provide a clear demarcation between the two species of violence because both kinds of violence may involve indiscriminate targeting of noncombatants, and both kinds of violence are motivated in large part by a desire to effect political change. Even so, once the mode or scope of violence goes beyond a certain threshold, then even legitimate freedom fighters will be branded as terrorists by the international community.

When I look back to when I was called to the Bar in 1973 by the Treasurer and Benchers of the Honourable Society of Gray’s Inn, the world—and certainly the legal world—seemed a safer place. Stern portraits of richly robed and magnificently bewigged judges lined the panelled walls of the sixteenth-century hall. On a raised dais, a distinguished band of legal luminaries and assorted, bespectacled greybeards watched keenly as each of the fifty nervous student barristers, white tie and tailed like extras from a Fred Astaire movie, shook the Treasurer’s hand and on being declared “utter barristers” received a slim volume entitled Duty and Art in Advocacy by Sir Malcolm Hilbery. All this spoke of centuries of slowly evolving legal tradition, of the significance and dignity of the profession, and of the certainty of the role of judges and trial lawyers in the legal process.

Mary Anne Gehris describes herself as a victim of United States immigration law. She was born in Germany in 1965 and moved to the United States with her adoptive parents when she was less than two years old. A lawful permanent resident for nearly forty years, Ms. Gehris is married and has two children, one of whom suffers from cerebral palsy. In 1988, Ms. Gehris pulled another woman’s hair. She pled guilty to the charge of misdemeanor assault, following the advice of her public defender. In 1999, Ms. Gehris applied for United States citizenship. In response to her application, the Immigration and Naturalization Service (INS) served Ms. Gehris with a notice to appear (NTA), charging her as a deportable, or what would now be called a removable, alien. INS told Ms. Gehris that her prior misdemeanor conviction was a “crime of violence,” a deportable offense under the Immigration and Nationality Act (INA), as amended in 1966. Unlike most immigrants in her position, however, Ms. Gehris was allowed to stay in the United States after the Georgia Board of Pardons issued a pardon for her conviction, noting that the 1996 immigration laws had “adversely affected the lives of numerous Georgia residents.”

Between 1978 and 1989, the Connecticut State Police Department recorded outgoing phone calls in thirteen police barracks throughout the State. When this practice came to light during the investigation of a state trooper in 1988, a mystery class of plaintiffs threatened to sue for violation of the Federal Wiretap Act. The class action resulted in a $17 million settlement, in part because the State feared that it could be penalized as much as $10,000 in damages per phone call under the Wiretap Act, for a total of over $1 billion in civil liability. In 2004, the United States District Court for the Middle District of Florida entered default judgment against Michael Brown when he failed to defend against DirecTV’s civil claim for intercepting its broadcast services. Although Brown was found guilty of conversion of DirecTV’s cable signal, causing actual damages of $3,886.64, the Eleventh Circuit decided not to award liquidated damages under the Wiretap Act. DirecTV was forced to resort to other claims to recover actual damages. These cases illustrate the shortcomings of the Wiretap Act’s civil damages provision and the divergent policy concerns that plague both sides of the argument over whether liquidated damages under the Wiretap Act are mandatory.