Transcripts For CSPAN3 Supreme Court And Foreign Relations 2

Every weekend on American History tv on cspan3. Next on American History tv, Supreme Court Justice Stephen breyer. He talks about cases featured in his book the court and the world, american law and the new global realities, include iing cases involving Guantanamo Bay detainees. The Supreme Court Historical Society is the host of this event. Its about an hour. Honored today to have as our lecturer Justice Stephen breyer, whose talk will be about the court and the world, american law and the new global realities. Justice breyer is a long standing friend of the society. He has delivered lectures, as he will be today. He has hosted dinners, hes introduced speakers, and were very fortunate hes giving us this lecture. He truly is a man that needs no introduction and theres not an introduction i could do that would be complete in the time allotted, but let me touch on highlights, if i may. He graduated with highest honors from stanford. He then went as a marshal scholar to oxford where he received first class honors with a b. A. Degree in philosophy, politics, and economics. He went to Harvard Law School where he also excelled, was articles editor of the law review. He then clerked for Justice Goldberg and like all clerks hes very circumspect about his work there but he contributed to the first draft of the ginsberg excuse me griswalds vs connecticut case which is a case that recognized the right of marital privacy. After clerking for justice goldburg, he worked in the antitrust division of justice. He taught at harvard both in the law school and Kennedy School of government. He was chief counsel to the Senate Judiciary committee from 1978 to 1980, and he was nominated by president carter to the First Circuit nine days after carter had lost the 1980 election. He had so impressed senators on both sides of the aisle for his work on the Judiciary Committee that he was confirmed 8010. He then served for 14 years on the First Circuit, the last four years as chief judge when he was nominated to replace Justice Blackman in 1994. And he assumed the oath of office in august of 1994, so were coming up on the 22nd anniversary. So if youll all please join me in giving a welcome to our lecturer, whom were very lucky to have. Thank you, justice. [ applause ] thank you. Very nice introduction. This is a formidable group. I mean im talking a little bit about history but you actually know about history. Quite a lot of you. I was told by a historian, anyone can make history but it takes a real genius to write it. And books arent that easy. There was my publisher is grateful for your introduction. I wrote a book once about it was technical. Found its way into the hands of Los Angeles Times reviewer. Dont ask me how. He decides to write a review. He says, well, he says in the alice in wonderland the mouse emerged from the pool of tears they heard this story before. And the door mouse begins to read from the history of england. Why are your writing that . Why your reading that said alice . Were wet, and this is the driest thing i know. That was before breyer wrote this book. This is not about regulations, this is about the court, and its terribly important that you support actually these kinds of things because its important that people know something of the history of the court, and so im very glad to be here and im glad to be talking about this and im glad youre here listening. Very nice of you. What is this book about . So, i say that it is its the analogy its a kind of a report, a sort of a report from the front. About what . Well, if youve ever heard the Charter House of palm, which is a very good novel, it opens with a hero is on the battlefield at waterloo. Bullets are flying by, horses are running back and forth. Napoleon is charging this way and that way and the hero thinks to himself, you know, he says something really important is happening here. I wish i knew what it was. And thats what this is about in respect to when i hear words like globalization or interdependence or shrinking world. Thats a good cliche. All true, of course. But what is about it . I cant tell you a big answer, but i can do this. I can draw on my own experience over the last 20 years or so and in terms of that experience, which is here in this court ive seen a change. And the change is just in the number of cases where you have to know something about whats going on abroad in order to decide the case correctly and intelligently. Ive seen that number grow. I mean i think they were pretty rare when i first came here. Now if you looked it up and said i think its 15 or 20 , i think would you be closer. You see its going like that. So what ive tried to do is say ill tell you what its like here for those of you interested. Ill tell you about these cases specifically. And i will group them. And i will show you different topics. And under each topic i will give you some examples, and then ill say what would you like me to do about it . How would you like me to decide the cases because they call on different skills and different kinds of knowledge. All im going to do in the next 20 minutes or so, maybe half an hour, well have questions after. Is just give you a few examples of some are pretty interesting, and some are medium interesting. In any case, lets go to a very hot topic which has a long wind up, short pitch, and that is wellknown topic, what do we do about Civil Liberties in time of National Security. Theres much less in the court u. S. Reports than you might think. Jackson said that once. Jackson said, you know, he said looking to see what the framers thought about this kind of problem, inherent powers of the president or inherent powers of congress or powers of Civil Liberties he said well, its like trying to its like joseph trying to interpret the dreams of pharaoh. You start looking it up and discover there isnt a lot written. Not in the u. S. Reports. Why not . Well, for many, many years i think the general view of judges here as well as judges abroad were when you have first you have security needs. Like a war. Or Real Security problem. And you look at the document, the document says this power is primarily the president s. Its congress. Not the court. What about the Civil Liberties. There the courts do have something to say and sometimes theres a clash. So why is there so little . I think the answer is cicero. He was not one of the founders. But they did, in fact, know about cicero and that attitude prevailed for many, many years. Cicero said Something Like, i used to translate like this way. When the canons roar the law fallscy meant. Someone pointed out the romans actually didnt have canons. That wrecks that. In time of war, when the arms are, et cetera. You see the point. Did the court live up to that . Yes. You wont find that many cases during the 1812 or abraham lincoln. I mean he had a real problem, obviously. But very few cases, one maybe known in the civil war. Maybe lincoln didnt get involved in Civil Liberties. He didnt. I mean tens of thousands of people were arrested. Seward was secretary of state called in the British Ambassador and said you see this bell here . I can push this bell and i can have anybody i want in new york thrown into prison. He said i can push it twice, i can have anybody i want in indiana thrown into prison. Tell me he said does the queen of england have such power. There were a lot of civil liberty problems and the court got involved after the war was over. Thats different. Thats justice jackson, he thought it was a good idea. He wasnt there at the time. Let them do what they want and then well come in afterwards. Thats not, i think, for reasons i wont go into a very workable judicial philosophy. But nonetheless, look and see what happened to Civil Liberties in the civil war. We can understand it. But the court doesnt intervene at all. Well lets go to world war i and there are many books written on this about the masses, you know theres freedom of speech being interfered with here and he was alone or nearly alone. Court stayed away from it until after the war. Or world war ii. We know that one. My mother used to take me down, i grew up in san francisco, drove me down to the peninsula. I was a small child. She said thats where they held the japanese in world war ii. And the note of approval was not in her voice. I mean, 70,000 american citizens of japanese origin were ordered to report, and 70,000 american citizens were just moved. Why . Because general dewitt 6th army head said we better get out of here, the japanese may invade and they may get involved. They were citizens. They were told to report, and they moved them. Roosevelt signed that order. It isnt what happened to the germans and italians or germans and italians or japanese in england or other places which also had problems but it is what happened to the japanese here. Now they went to the camps against their will. Wellknown story. But there was one person, fred koramat, who said this is ridiculous, im an american citizen and i dont think they should do this. If they want to look into my background, fine, but not send me to some camp and he found a lawyer. Now i met him once, actually. Very interesting. He was across the street where we live up in cambridge because he was 80 years old at that time. Very feisty guy. I liked him very much. He was having a drink with our neighbor ann, and ann was the daughter of ernie bezick who played poker with my father and was the head of aclu and he represented this man in this famous case. Aclu wouldnt sign the brief. They got into it later. They got back into it. You see this was january of 1942. February, march, april, may, that spring of 42 and that was just after pearl harbor. And who was supporting it . Earl warren. Who opposed it. J. Edgar hoover. But off they went to the camps. Now koramatsu said well win this and his lawyer thought so too. The case got to the court in 1944. In 1944 there was no risk of invasion. There was not a problem with submarines off the shores of california. They were pretty certain they were going to win and before the case went to the court, when the brief was in the Justice Department two lawyers got a hold of this and they read an article somewhere written by a commander in the navy who had been involved in intelligence and they got suspicious of this whole story. See because the government was saying, the Defense Department was saying or Army Department they were saying, in fact, there had been 763 instances of intercepted communications, messages sent to submarines off shore. There were several instances of sabotage. We should look into this. He called in the fbi. No there was no sabotage, the sabotage took place after they were moved. The fcc came back and said there was not one instance of messages being sent out to submarines. What did the 763, whatever it was messages. Those were all buck privates who didnt know how to work the machines. So they said thats pretty interesting, thats amazing. How did you do this so quickly, this big pile. We didnt do it now. We did it in 1942. And we showed to it the general. He knew it at the time. So they wouldnt sign the brief. They said were not signing it, were not going to defend this. Then they a big fight between departments and who was brought in to mediate, herbert j. Wexler. He was running the war part of the Justice Department was a Master Genius and he wrote a footnote, disowning the army on this issue and he wrote it in words that no one could understand. So he convinced burly to sign the brief and the Justice Departments position, i dont know, you read it and see if you can figure out exactly what it was. In fact, who won the case . The government. 63. Famous case. And who is it who upheld . The government. Black, douglas, frankfurter, the liberals who had, in fact, would sign brown versus board. And they were all on the government side. It was the three dissenters were be roberts, murphy and jackson. And there was 63. I thought for a long time maybe they didnt understand there was so little evidence. Footnote, who reads footnotes. [ laughter ] Arthur Goldberg told me that years ago. He said dont write anything in the footnote if you want anybody to read it. In any case i thought maybe of the oral argument and charlie worski was representing the japaneseamerican Defense League pep said to the judges go read the footnote. That footnote denies that theres any basis to this whatsoever and it can. And it did. So they had read it. What were they thinking . My guess, my guess is they were thinking cicero. And while it was a guess, i later met someone i hadnt gotten this source, he got the source of the conference and he said black walked into this conference and he said, well, somebody has to run this war. Its either us or its roosevelt and we cant and so we better let roosevelt do it. And that was the argument. You read the opinions and you see if you dont think i think it was the argument. I think thats what did it. By the way, the only one that has 100 right was murphy. Hes got every fact right. Every fact. Thats problem with a historian. I figure ill find out and somebody must have told him. He couldnt have known all this stuff. Buehrle or ennis must have got to him. I phoned his law clerk. Gene is 90 years old, hes alive. I hope he still is. Im not sure. I called him. I said, now tell me, tell me. Somebody must have gotten to murphy. How did murphy get all those facts right. You know what he said . I dont remember. So there we are. Now, thats koramatsu, there we are cicero. Now march on to the korean war and you have the steel seizure case. Very interesting. Because the court there during the midst of the korean war, jackson and the others say to president truman, no, you cannot seize the steel mills even though they were told and truman was told by cabinet officer after cabinet officer if you do not seize the mills there will be a strike, no production and people will be killed in korea, a lot of them as a result. But the court went the other way. So what i do think, my own view after reading this and going through the history of it . They told roosevelt he couldnt do it. Roosevelt had gone too far. Of course he was dead. So it was easier to tell him. Moreover truman wasnt nearly as popular as roosevelt had been. But there you have it. Whatever the reasons, i mean they had gone too far and i think people on that court thought koramatsu was going too far. They thought there had to be a stopping place. But there isnt much in the u. S. Reports. Theres some but not much. Shows a stopping place until you get to steel seizure and read jacksons opinion. Its absolutely fascinating. Its become wellknown because he categorize the different source of Congress Agrees with the president he can do a lot of things, doesnt agree. But the real interest to me at this time is his view about president ial power being exercised and hes very cautious and hes saying, he says look what happened in europe when the president starts, when a president. Im not saying what happened here but he says but, but, but. Stop. Now you come up to more recent cases, four cases out of guantanamo. Four. All brought by the detainees. Everyone of them. The detainee, not necessarily the most popular person in the united states, bin ladens chauffeur was not and is not the most popular person in the united states. Brought against the president or secretary of defense, all four, the detainee wins. Congress has passed a statute first we had to interpret the statute then Congress Passed a statute specifically saying they cant get into court. They said it was unconstitutional. R but if they y combatant, some said were not. I was a peaceful farmer. The government said why did you have a bazooka. He said every peaceful farmer in afghanistan. See theres an argument there. So were asked to say what do they have to do . They have to go through due process. So in essence we have four detainees who won. But what is the case about . What was cicero replaced by . If i had to choose four or five words it would be Sandra Oconnor who wrote in one of cases and i joined her opinion on this and it was the courts attitude in those cases, it says, she says the constitution does not write a blank check to the president. Not even in time of war. Great. Fine. The only unfortunate thing about that is, well, what kind of a check does it write . Now youre beginning to see the problem. From our point of view, from the point of the view of judges and lawyers and others. What kind of check does it write . Its not too hard when youre not in the business. But now were in the business. So if we are in the business of answering that will kind of question there has to be answers and now maybe youll see as well why our opinions are not particularly popular. I mean there are some groups who say you never should have gotten into this. You should go back to cicero. You want japanese, 70,000 american citizens . The other side said you should have been more thorough, not thorough but more definite. You should have had a few rules here. You should have said if they could use hearsay or not hearsay in these cases. Why was it so vague . Why is it so narrow . I said the reason, the true reason so narrow, because we dont know the answer. Thats the truth it. We dont know. Lots of situations can erupt. Now thats the long wind up. How are we going to find out . Thats not something we alone have to think about. If were in the business of saying when it goes too far these efforts by congress and the president , too narrow Civil Liberties in the name of security, if were in the business, we better know something about what were talking abo