The following is part two of an exchange among
professors Cass Sunstein, Laurence Tribe, and George P. Fletcher in response to
Fletcher's article "War and the
Constitution,"[ TAP, January 1-14,
2002]. Part one appeared in the February 11 issue of TAP.
Cass Sunstein Responds:
Disputes about legal technicalities don't make for fun reading; but under the
Supreme Court's decision in Ex parte Quirin, President George W. Bush does
have the authority to use military commissions to try suspected terrorists. In
arguing the contrary, Fletcher suggests that the Quirin Court allowed the
defendants to be convicted for spying, not for violations of the laws of war.
This is wrong. The Court refused to assess the spying charges and ruled only on
the charges involving violations of the laws of war. Fletcher writes that with
"critics like Sunstein and Tribe, the president hardly needs supporters." But it
makes no sense to be an all-purpose critic of this (or any other) president. When
the president acts within his legal authority, law professors should say so.
Laurence Tribe Responds:
Fletcher and I may disagree about important constitutional issues, but his
continued insistence on swatting at straw men--now self-righteously declaring
that I am "confused," that my views are "topsy-turvy," and that I am not
"faithful to the Constitution"--disserves everyone involved. Suffice it to say,
Fletcher has declined to defend his original false claim that I had endorsed the
president's military tribunal order (which I had in fact denounced as
unconstitutional in Senate testimony), and I don't see any reason to cheapen
further what could have been a valuable exchange of ideas by responding with
labels rather than analysis.
Fletcher is simply mistaken in claiming that those accused of terrorism are
invariably entitled to the full protections of the Sixth Amendment because their
crimes are "serious" and thus inflame the public's "passions." The
public's emotional reaction to terrorism hardly supports trying terrorists before
those very juries that might be the least impartial. Nor does it make sense for
Fletcher to decry the injustice of denying terrorists trial by jury while he
insists that they are entitled to trial in an international tribunal or by
court-martial, neither of which affords a jury.
Fletcher also misunderstands Quirin, which upheld use of military
tribunals for Nazi saboteurs who had sneaked into the United States to spy and to
prepare for future attacks. The Court cited a history, antedating the founding,
of submitting such "unlawful combatants" (who use stealth to avoid the risk of
being shot on sight) to military tribunals, which afford due process but not the
full protections of courts-martial. Fletcher rightly notes the Court's reference
to a Revolution-era statute dealing specifically with spies but wrongly asserts
that the Court confined its notion of "unlawful combatants" to those whose
sabotage was limited to spying. We must surely be cautious in extending
Quirin's reach, and I continue to regard the decision itself as dubious.
But trying terrorists by commission falls within Quirin's logic not
because their crimes are "worse than spying" but because they similarly aim to
kill by stealth in what is effectively a time of war.
Controlling Pakistan's Nukes
In his reference to two articles in the Pakistani newspaper Dawn that
announced our visit to Pakistan, Ramindar Singh concludes, or strongly suggests,
from this evidence alone that these visits indicate that the United States "has
taken effective control of Pakistan's nuclear arsenal" [TAP, January
That conclusion is too good to be true. If our presence has the effect of
altering the control of nuclear weapons, we are ready to go anywhere for the sake
of universal peace.
It is difficult for us to understand how a senior journalist
could reach such a dramatic conclusion without checking with those he quotes or
asking others knowledgeable about the situation. They probably would have
suggested a more modest hypothesis: We were in Pakistan only to discuss, in an
unclassified and unofficial way, certain issues concerning nuclear stability and
Let us back up a bit and explain the origin of our visit. Europe, like
America, is concerned about nuclear stability in South Asia. We visited Pakistan
as representatives of the Landau Network, a small organization that is regularly
consulted by the Italian Ministry of Foreign Affairs to provide a better
understanding of the Pakistani situation and viewpoints. In May 1999, we
organized a meeting on the situation in South Asia with the participation of
Pakistani and Indian experts, including the current Pakistani foreign minister.
We have maintained these contacts; and with their help, we planned a visit to
The objective is to prepare reports that will be made public, that outline our
understanding of the nuclear situation in South Asia, and that articulate some of
the relevant nuclear risks. (Our report is available at target="outlink" HREF="http://www.mi.infn.it/~landnet">www.mi.infn.it/~landnet.) We do not
report officially, because we do not have the necessary
clearance; these reports are unclassified.
We asked delicate questions in Pakistan and sometimes did not receive answers.
But we want to assure your readers and the skeptical Mr. Singh that we had many
useful and friendly conversations and that our visit was extremely informative.
It is true that Dawn dedicated some attention to our visit, but we
believe that their emphasis reflects a desire to demonstrate to other nations
that in Pakistan nuclear issues are frankly discussed, nuclear concerns are
seriously considered and addressed, and an effort is being made to increase
dialogue and transparency.
We took some time before responding to Mr. Singh's article because we wanted
to finish our report first. But the elapsed time also confirms that our December
visit did not effect any change in the control of Pakistan's nuclear weapons. By
now, one would have had other confirmation of Mr. Singh's science-fiction
Paolo Cotta-Ramusino and Maurizio Martellini
Landau Network Centro Volta,
Ramindar Singh Responds:
I expected that this article would invite pro forma denials. It is not in
any of the relevant parties' interest to admit that such a development could have
taken place. Neither the United States nor Pakistan will admit to this shift,
because disclosing such information could unnecessarily destabilize General
Pervez Musharraf. India is content that Pakistan's nuclear weapons may have been
taken out of the region's military equation and is thus also quiet.
But look at what has happened since mid-December on the
India-Pakistan border. India's aggressive rhetoric and militaristic
drum-beating--which is totally inconsistent with the country's foreign policy
over the past few decades--suggests that India realizes that with Pakistan's
nuclear factor possibly neutralized, it can fight and win a conventional war with
Pakistan. Just a few years ago, when the two armies clashed at Kargil, India
resisted escalating the confrontation into a general war partly because of the
danger posed by Pakistan's nuclear weapons.
What has changed since then to warrant such aggressiveness on
India's part and has brought U.S. Secretary of State Colin Powell rushing to the
subcontinent? Could it be that having neutralized Pakistan's nuclear option,
Powell believes that it is incumbent upon the United States to protect Pakistan
from a military defeat? Mr. Cotta-Ramusino argues (wrongly) that I concluded that
Pakistan's nuclear weapons had been taken over by the United States based solely
upon his trip as evidence. His visit was mentioned as only one confirming fact.
Consider, however, the sequence of events that preceded the network's
consultation in Pakistan. Following the seven-point, "with us or against us"
ultimatum delivered in mid-September by Colin Powell's deputy Richard Armitage,
Pakistan closed its border with Afghanistan, opened its intelligence files, and
provided access to American forces. Since then, Pakistan has complied with every
American demand, including creating a permanent base in Karachi and turning over
Pakistani nuclear scientists to U.S. agencies for interrogation following reports
that these scientists had traveled to Kandahar to discuss nuclear material. In
the last week of October, the International Atomic Energy Agency warned that
terrorists could have access to nuclear material, and the FBI then issued a
warning about a possible new terrorist attack on the United States. Pakistan's
foreign minister also issued a statement saying that the United States was
applying security measures to Pakistan's nuclear assets. Shortly thereafter,
Professor Cotta-Ramusino and his colleagues arrived in Pakistan to question
experts and officials about the disposition of Pakistan's nuclear weapons, which,
as Dawn reported, "raised concern in the security establishment."
Let us not forget that Pakistan is still a military dictatorship, and it is
unlikely that the press would print such a statement on so sensitive an issue
without being asked, or at least permitted, by the authorities. One would have to
be extremely simple-minded not to wonder about this visit and the Pakistani
establishment's recent openness.
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