Question and Answers with Morton H. Halperin

MORTON H. HALPERIN has been on both sides of the fence. Now a senior fellow at the Council on Foreign Relations, Halperin worked for the Defense Department during the Vietnam War. And for 21 months during the war-18 of them after he’d returned to the private sector-the federal government illegally tapped Halperin’s phone because of fears he was leaking classified information to reporters. Halperin, who was cleared of any wrongdoing, says the experience was “chilling” and a lesson in the importance of keeping checks and balances within the government. The director of the Council’s Center for Democracy and Free Markets returned to Capitol Hill recently to testify before Congress about new anti-terrorism measures.

NEWSWEEK’s Jennifer Barrett spoke with Halperin about the difficulties of balancing security concerns and civil liberties and whether new anti-terrorism measures have gone too far.

NEWSWEEK: You’ve been quoted as saying you’d always feared “a serious terrorist attack in the United States would pose the gravest threat to our Constitutional liberties.” Have those fears been realized now?

Morton H. Halperin: Yes. We’re seeing actions taken every day that violate fundamental civil liberties and violate judicial procedures and people’s due process rights. One of those actions that has received a lot of criticism is the Presidential Order that President Bush signed earlier this week allowing trials by special military commissions of non U.S. citizens who are suspected of involvement in international terrorism. Do you feel the current circumstances allow for the reinstatement of trials before a U.S. military tribunal?

Morton H. Halperin: The Constitution states that any person in the U.S. is entitled to certain protections. There may be narrow exceptions, including when we’re at war. But that requires that a judge make the decisions about whether these are appropriate circumstances for the use of this type of commission. Under this order, it says that if the president decides you’re within the jurisdiction of the tribunal, the secretary of defense can have you arrested, and you can be tried and convicted by the court with no recourse except by the president. The trial can be held in secret, the panel can decide by a two-thirds vote and is not asked to prove guilt beyond a reasonable doubt. The government can use evidence obtained through torture. The suspect is not allowed witnesses. There have to be limits on the degree to which the government can deviate from normal Constitutional practices in arresting, detaining and trying people.

Newsweek: Earlier this month, the Department of Justice declared that prosecutors could eavesdrop on phone calls between detainees and their lawyers without seeking judicial approval if they have a reasonable suspicion that the inmate might be trying to pass terrorism-related messages through his attorney. Critics claim this breaches lawyer-client confidentiality rights and may prompt suspects to keep valuable information to themselves. What do you think?

Morton H. Halperin: I think this is a perfect example of an authority the government may well need and should be granted in special situations, but the government has bypassed the judicial process here. You need to go to a judge and say you believe the lawyer is part of this conspiracy and ask the judge to remove the lawyer, or order a wiretap and instruct the lawyer and client that their conversation will be taped. What they can’t do is to do it on their own. Under our system now, you have to go through a neutral magistrate or higher authority because prosecutors, in their zeal to prosecute, cannot be trusted to protect these people’s rights.

Newsweek: An estimated 1,200 terrorism suspects have been detained since Sept. 11, many of them secretly. The Justice Department has not been very forthright about who is being detained or why. Isn’t this exactly the type of behavior that our government has protested against in other countries?

Morton H. Halperin: Here we say we don’t have to follow the norms that everyone else does. The detentions violate our own Constitutional procedures and the norms we apply to other countries. And the fact that some people have relatives missing but are unable to find out if they are being held by the government, that is unacceptable. The notion that the government is holding material witnesses indefinitely is again a fundamental violation of the basic rights that people have in the United States, whether they are citizens or not. It makes a mockery of what we are fighting for. We are doing many of the things that we tell other people they should not do because there are universal laws. We insist that all nations behave consistently with those laws, but we’re behaving as if those rules apply to others but not to us.

Newsweek: Do you feel that any of the authorities granted under the new anti-terrorism measures are justified in the fight against international terrorism?

Morton H. Halperin: I actually believe that most new authorities granted to the intelligence officials and FBI in the counter-terrorism bill were appropriate in investigating international terrorist activities aimed at killing Americans at home and abroad. For this new threat, I think the government needs new authorities and a fundamentally new approach to dealing with the problem. The objection I had was that the government insisted on getting the authority not just on terrorist groups seeking to kill Americans but all terrorist groups--that could mean protesters who damage property, and people who are involved in nothing more than legal protests against American policies.

Newsweek: During the Vietnam War, your telephone was tapped for 21 months, both while you were working for the National Security Council and when you’d gone back to the private sector. How has that affected your views on balancing security concerns with civil liberties?

Morton H. Halperin: They recorded my conversations, my wife’s conversations, my children talking to their friends on the phone. If you read over them [transcripts of the conversations] as I did later, it is a chilling intrusion into your privacy and also a lesson that if you allow the executive branch officials to do whatever they want, they’ll do things that cross the lines and invade people’s privacy.

Newsweek: Do you think the Bush administration has adequately and appropriately responded to concerns about violating international law or civil liberties?

Morton H. Halperin: No. There was an attempt by members of Congress to narrow the authorities in the bill to apply only to those specific [international terrorism] investigations. And the administration bitterly opposed this, just as they had in committee and when the issue was raised in private conversations. They were clearly determined to get these authorities beyond investigating terrorist activities. The idea is to put everything they want in the bill now because Americans are scared and Congress will not want to be accused of delaying the passage of measures to protect against terrorism. The danger is that these authorities will be directed at both Americans and legal aliens in the U.S. who are not engaged in criminal activities. We know from experience that these powers migrate outside of the areas Congress initially had in mind. Some of the things that occurred that I knew about, none of them rise to the pervasiveness, the intensity of outrageousness in the scope of what the government wants and claims to be able to do now. I think Congress has a responsibility to put a stop to it.

Newsweek: How do you keep the government from crossing the line from protecting citizens to violating their civil rights?

Morton H. Halperin: You can start with the Constitution. Congress also needs to keep a check on the executive branch by the kinds of reporting and overseeing it does and through remedial legislation. And, of course, the courts have a critical role to play. The government is systematically trying to restrict the courts in these processes but I don’t think the court will allow it. The public also has a role to play-the press, in making sure people get the news, and the public, in speaking out and through protests and creating a climate where the administration cannot continue to get away with these things. I think we need to try and reverse some of these measures. The public needs to become educated and convey that this has gone too far, and Congress needs to step in.