Topic: September 11 & the Protection of Individual Rights & Civil Liberties
Senator: Feingold
Date: SEPTEMBER 13, 2005
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FEINGOLD: Judge Roberts, on September 11, 2001, obviously an event occurred that had a profound effect on all of us in this country. We all have our own memories of that day.
During those first few hours after the attacks, I kept remembering a sentence from a case we both have probably studied in law school. These words were: "While the Constitution protects against invasions of individual rights, it is not a suicide pact."
I took these words as a challenge to my concerns about civil liberties at that horrible time in our history. We have to be careful not to take civil liberties so literally that we allow ourselves to be destroyed.
But then, when I actually tracked down the case itself, not remembering what case it was from, it was Kennedy v. Mendoza-Martinez, and I found that Justice Arthur Goldberg made this statement but then went on to rule in favor of the civil liberties position in this case.
He actually affirmed the importance of civil liberties in wartime.
So I would like to start this part of my questions by asking you what kind of impact that day had on you and your belief system, and whether it changed your view of the importance of individual rights and civil liberties and how they can be protected.
ROBERTS: Well, I remember the day vividly, Senator. I think I was one of the last people in the country to find out about it. I had gone into a hearing. It was actually in an original action in the Supreme Court. The special master was at G.W. Law School. And we had a hearing -- I think it was starting a little before 9:00 that day.
We went in there. I remember, just as I was leaving, getting a report that a plane had struck the World Trade Center. But it was -- at the time, I thought it was like one of those tour planes. I had no idea what they were reporting.
I went into the proceeding and we conducted the hearing. It lasted several hours. Nobody notified us and we didn't know about it.
And I remember leaving and trying to walk back to my office -- I was at the law firm then -- and the street was blocked off. And I figured: Well, there's something going on at the White House.
I remember walking down further, and it was still blocked off and still blocked off. I finally went up to one of these Guards and I said, well you know, "What's going on?"
And he looked at me like, "Where have you been?"
And only then did I begin to appreciate it. I went back to my office because there was no way to get out of town by then...
FEINGOLD: But at what point did you start thinking about the implications of this, in terms of civil liberties and the challenges this...
ROBERTS: Well, it was when I went back to the office and saw the smoke rising from the Pentagon. And, as you can imagine, that was a chilling sight. And the basic issue of how you address the question of civil liberties in wartime and times of crisis is a critically important one.
ROBERTS: The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis. There may be situations where the demands are different and they have to be analyzed appropriately so that things that might have been acceptable in times of war are not acceptable in times of peace.
I think everyone appreciates that. But the Bill of Rights is not suspended and the obligation of the courts to uphold the rule of law is not suspended.
FEINGOLD: Did you recognize at that moment that this might become a time when it would be harder to protect civil liberties?
ROBERTS: I think -- I don't recall recognizing that in particular, but that is, of course, always the challenge in times of war and in times of stress. Whatever the cause, I think it is the obligation of the courts to remember, just as within the model of the D.C. Circuit from our earliest case of the treason trial of Aaron Burr, to calmly poise the scales of justice.
And the emphasis is on calmly. It requires a certain dispassion, a certain separation from the passions of the moment.
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