so
abu ghraib guantanamo
drone strikes if these phrases conjure
up in your mind
images of an abusive government you're
not alone
ever since the horrific attacks on
september 11
2001 a rising drum beat
around the world and in the united
states has said that america is
trampling on human rights
the economist magazine just last month
cover story
called it liberty's lost decade and with
the recent revelations from edward
snowden about electronic surveillance
that drum beat's only getting louder
today i want to talk about a path out of
this
it's a path laid down by america's
founders
who had the genius idea to say
our leaders are going to make mistakes
and the measure of a good system of
government
is what the system does to correct those
mistakes
and so here's the simple idea
institutionalized descent
now that sounds oxymoronic
institutionalized dissent
after all governments have as their
natural tendency
to suppress criticism but the american
system was different
right from the founding it guaranteed
freedom of speech
freedom of press and it divided the
government into three branches three
great branches and the whole idea
was that any two of those branches might
mess up
and it was up to the third to check and
balance the others
now we're far from 1787 today but the
seeds of
that kernel of truth that idea of
descent
is powerful is something we can build on
and in america if we do it we can find
answers to the drone strike controversy
into electronic surveillance
and much much more and if the rest of
the world followed our example the
benefits are unlimited
instead of taking to the violence taking
violence in the streets in bloodshed
which we tragically see every day today
we start thinking about government
as a tool to accommodate dissent
to channel it and indeed government to
flourish precisely because
of such dissent that's what the
constitution was about and when it was
enacted in 1787
it was easily the most democratic
document the world had ever known
and james madison said in describing the
constitution he said
if men were angels no government would
be necessary
if angels were to govern men no
if angels were to govern men then then
the great that no government would be
necessary
in framing a government which is being
administered by men over men
the great difficulty lies in this you
must first enable the government to
control the governed
and in the next place oblige it to
control itself
that's their central insight and so they
set up three branches of government
designed to check and balance one
another if the president
aired then the courts in congress would
say
hey you're making a mistake and
sometimes that check works well
really well well how do i know that well
i'm living proof of that actually
because you see after 9 11 two months
after 9 11
um i was sitting on my couch i was or a
friend's couch i was teaching at yale
law school
for the year i was borrowing a
professor's apartment
while i was there and you know it's a
saturday night and i was doing what law
professors do on a saturday night like
checking the constitution for
grammatical errors or whatever they do
um and i saw on the bottom of this
cnn screen it had a news crawl and it
said
president issues military trial order
for suspected terrorists
and i thought to myself huh that's
interesting because
i was in the clinton administration as a
national security advisor
at the justice department and i thought
you know we thought about that after the
embassy bombings in africa but we
concluded there was no legal way to do
that
so i wonder what this is about so this
is
2001. i got on my friend's computer her
laptop it was a dial up modem we didn't
have high speed access at that time
and this was before google so you know i
just typed in whitehouse.gov into the
search bar
and i saw the order of the president
the military trial order and honestly my
first reaction was i thought it was a
joke you know there are those spoof
white house websites the joke ones
and that's what i thought i was looking
at because the president was saying
i am going to set up a brand new system
of justice and in this system i am going
to hand
pick the defendants i'm going to hand
pick
the prosecutors who are going to bring
cases against the defendants
i'm going to hand pick the judges i'm
going to hand
pick the appellate judges who review the
case
i'm going to define what is a crime and
what can be tried in this
i'm going to define the rights they have
in these trials
and he later said they had zero
constitutional rights
and zero geneva convention rights and he
said he was going to
define the punishments which he said
would include the death penalty
oh and by the way the last lines of that
presidential order
said the federal courts have no business
reviewing what he's doing at guantanamo
bay as the president
now i'm a big believer of presidential
power in wartime
but i thought that went way too far and
so i paired with a
brilliant navy lawyer named charlie
swift and a wonderful international law
firm named perkins cui
and we decided to take the test case of
defending bin laden's driver
and say that this trial system was
unconstitutional in a violation of the
geneva conventions
and i remember it was september 29 2006.
i remember like yesterday
and we brought the case to the supreme
court and on that day we found out we
won
the case in the supreme court that the
guantanamo tribunals were coming down
that the supreme court had ordered the
geneva convention's
most basic guarantees common article 3
which says the rights indispensable to
all civilized peoples must be granted
the supreme court said that applied in
the war on terror
and you know the justices were reading
their opinions from the bench
and i remember we walked out of the
courtroom to this huge media firestorm
press from all over the world what's
this decision what does it say what does
it say what does it say
well the decision is 184 pages long we
hadn't had time to read it
but we did know what it meant and here's
what i said on the steps of the supreme
court i said
here's what this decision means a guy
who's the lowest of the low
solemn hamdan accused of conspiring with
the world's most evil man osama bin
laden
could bring a case and not just against
anyone to bring a case against the
nation's most powerful man the world's
most powerful man
the president of the united states and
he could win
and he could win not just in some
rinky-dink traffic court
but in the highest court of the land the
supreme court of the united states
that says something great about america
i told the media that day
in many other countries mr hamdan would
have been shot for bringing his case
and more to the point for me his lawyer
would have been shot
but america was different it's special
it recognized
that the system was strong enough to
handle the dissent
strong enough to admit that even the
most powerful man in the country
made a mistake and that's what got me
thinking about our system
our system is different in that respect
and that's a true message about what
america
is that our exceptional american system
is not just as some divine
american right but it's the right thing
for the country and indeed the world
we're strong enough to recognize
that we make mistakes and we learn from
them
now sometimes those we make big mistakes
and we don't correct
them for a while i'm not here to tell
you a justo's story that america's
the greatest country all the time and we
never do anything wrong we do
how do i know that well i'm living proof
of that too let me tell you another
story this comes from world war ii
a long time ago but it's a very call
it's a very important instructive lesson
so after the bombings of pearl harbor on
december
of december 7th 1941
president roosevelt decides to issue an
order
to say that if you're a japanese
american then
you have to be curfewed and indeed
ultimately
you have to be removed from your home
and moved hundreds of miles away to
camps
forcibly relocated and this applied to
american citizens
it applied to people who were born in
america so long as they had japanese
skin
that was enough those people were moved
a hundred and twenty thousand
japanese americans moved from their
homes on the basis of nothing more than
their skin color
well there were a few brave individuals
who wanted to challenge that scheme
one remarkable guy gordon hirabiyashi
he's 18 years old
he is a student at the university of
washington in seattle
and gordon is a quaker and believes
deeply that this
presidential order is illegal and so
what does he do he violates the
presidential order
and he goes and turns himself in to the
fbi and says hey i violated the order
arrest me
so they asked him he then goes to trial
where he says
i did it i violated the order but it's
illegal the judge says
you're going to jail so sentences him
but during the sentencing the judge
realizes
the only place he can sentence gordon
hirabayashi to
is a prison camp that's a thousand miles
away in tucson arizona
and the judge says look we're in the
middle of fighting a war i don't have
the money to send you to tucson to serve
your sentence
here's what gordon does he hitchhikes
hitchhikes the thousand miles
from seattle to tucson because he felt
it was his duty
to do to to serve that sentence and that
and that's what he told the judge
thousand miles so just to give you an
example we're in this wonderful city of
the hague today
rome is 1022 miles from where we are
standing so he
hitchhiked the equivalent down to rome
and he gets to the prison
and the warden says hey i don't have any
record of you
and gordon says nope i'm here i've been
convicted i'm a quaker i have to serve
my sentence i can't do
what the judge said which is just forget
about it i need to serve my sentence
because gordon didn't believe in just
ignoring the law
he believed in challenging the law but
at the end of the day he thought
he had to work within the system not
just ignore it
and so the prison warden says come back
and so he comes back the next day and he
figured they figure out who he is
and he serves a sentence and gordon is
fighting his case through
all the way up to the supreme court of
the united states now in america
the cases when they reach the supreme
court are handled by the government's
top
courtroom lawyer called the solicitor
general and i had the privilege of
serving for a time
in that capacity for president obama now
at that time in world war
ii the solicitor general was a guy named
charles fahey
and faye he instructs his staff to start
writing the brief
defending the treatment of gordon
hirabayashi and of
japanese americans one problem
the lawyers who are writing the brief
discover that there's a confidential
naval intelligence report that says this
whole japanese
american internment is bunk that there's
no need for it
that individuals could be handled any
dangerous individuals could be handled
on an individual basis but that mass
internment wasn't justified
and the office of naval intelligence had
the lead
in the whole government when dealing
with the japanese japanese-american
problem such as it was
and indeed the last lines of that report
said quote the entire japanese problem
has been magnified out of its true
proportion
largely because of the physical
characteristics of the people
and our director of the fbi j edgar
hoover who was no civil libertarian by
any stretch
agreed that the mass internment of
japanese americans
was not needed and so these lawyers
write to their solicitor general to
their boss and they
say to him you can't do this you can't
file this brief you can't defend
this and indeed here's what the memo
says because we now have it it says
we must consider most carefully what our
obligation to the court is
i think we should consider very
carefully whether we do not have a duty
to advise the court
of the existence of the report it occurs
to me that any other course of conduct
might approximate the suppression of
evidence
the suppression of evidence what does
solicitor general fahey do
nothing instead he instructs his justice
department to file a brief with 15 pages
of quote racial facts about how the
japanese americans
were potentially were particularly
disloyal
about how they'd set up schools to teach
the japanese language
to their children but that they were
really fronts for indoctrination of
japanese nationalistic philosophy and
the like
and the supreme court unanimously
upholds hirabiyashi's treatment
and it's easy to blame the court and say
they got it wrong but after all the
court has nine generalist judges on it
they're not intelligence experts
they weren't given the full picture
and so the courts got the wrong input in
hirobayashi and that happens sometimes
the checks and balances that i'm here to
talk about and celebrate don't always
work so what can we do
to make sure these mistakes don't happen
again well the short answer is you can't
all you can do is hope for two things
number one you design a system to
minimize the frequency of the mistakes
and number two a system that catches
those mistakes and self
corrects them as soon as possible
afterwards
and that didn't happen in hirabayashi
after all it took 70 years when i was
the solicitor
when i was running solicitor general's
office i
confessed error and i said here's what
we did there
and it was wrong but it took a long time
for that to happen
so what can we do to try and make
governments
recognize their mistakes more early well
i think the most important thing we can
do
is that we can't we have to allow
dissent to flourish
we have to allow other voices to be
heard
and that's other voices not just in the
populace not in the newspapers and on
the protests and the like
but within the government itself that's
the place
where a lot can get done and the
american government's been doing that
somewhat
so decisions about war and peace are not
just not not just only the president's
decision
but they're informed by the state
department
the department of defense a whole
smattering of other federal agencies
that all have overlapping jurisdiction
they don't just have single silo
jurisdiction but they overlap and the
idea is to create
rivalry to create disagreement to
celebrate
that disagreement to harness that
disagreement
to try and produce better decision
making now does that always work
no all of us in this room know the
examples of iraq and the weapons of mass
destruction
that when the white house politicizes
those agencies
when it tells those agencies the result
they want to hear
the result is less information that
comes into the government
and worse decision making and so the
best way for government to work
is for the agencies to do their job free
of the interference and provide those
inputs
into the decision maker the president
because the american system is not one
in which unelected bureaucrats are going
to make these decisions no the genius of
the american system
is that a politically accountable leader
is going to make those decisions
the president's going to say we're going
to go to war we're not going to go to
war
and the voters can vote that person in
and out of office
if they disagree that's the democratic
system that we have
now one of the most innovative
breakthroughs after september 11th
is this is not just these
inter-departmental
rivalries like state and defense but
intra-departmental rivalries
the idea of creating dissent within an
agency
itself the intelligence community has
made this something of an art form
they've created for example the cia has
created red cells
the whole idea of the red cell is you go
in
and there's a standing group of people
who go in every day to work
and argue against the conventional
wisdom
they are pure contrarians and that's the
way to get better decision making better
information flow
into the government the state
department's foreign service does
something a little bit different
the foreign service has a descent
channel and a descent channel says
that anyone anywhere on the globe
can send a cable to washington if they
disagree
with something and it's got to get read
by the highest echelons of the state
department and reacted to
again this idea of trying to promote
checks and balances
from within the government bureaucracy
and that
ultimately is the solution to things
like drone strikes and electronic
surveillance
because as you've heard i think the
strength of the american system
is its belief in the adversarial process
that like in guantanamo you appoint
lawyers to represent selim hamdan
you get a better result in the end but
with drone strikes and electronic
surveillance there appears to be
no standing body of adversaries to argue
against a particular drone strike
to argue against a particular form of
electronic surveillance
there's none of that but we could change
that that's not hard to do
we can create institutions within the
government itself
to have standing units that argue
against these things as repeat players
you'll get better information better
decision making long term
that's something done by large
corporations all the time
if a large company ge's thinking about a
merger and acquisition
they may create a red team to say hey
you guys argue against what we want to
do
and then we'll make a decision
afterwards that's the way to get good
decision making
and so as we think in this great event
set of events today
about freedom and advancing the cause of
peace
i know it's in trendy talk in vogue to
talk about ngos
and to talk about extra governmental
organizations or international bodies
but we can't neglect governments
themselves
we can't neglect governments themselves
we can take the lessons of the american
experience
and build upon them both in the united
states and abroad
for the true measure of a great nation
is not that it doesn't make mistakes it
will it's rather what it does about
those mistakes when they happen
thank you