Jennifer Van Bergen J.D. responds to John Farmer’s New York Times Op. Ed.

Dear Editor,

Farmer’s editorial acknowledges the serious constitutional issues raised by the material support prosecutions and by “preventive detentions.”  Farmer acknowledges that (at least before 9/11) courts have been troubled by such issues.  He acknowledges the danger of allowing constitution-diluting precedents stand in criminal jurisprudence.  Yet, surprisingly, Farmer seems to lose his moral and legal compass when he considers that, somehow, despite these concerns, it would be acceptable to create an entirely separate system of courts to deal with terrorist cases.

How can it be acceptable to create what another former prosecutor titled a “national security court” system “outside the criminal justice system,” as Farmer notes?  Is that terrorism prosecution system also meant to be outside the law and outside the Constitution, in Farmer’s view?

In my article, “National Security Courts and Torture Warrants,” where I argue against such a system as Farmer proposes, I quote former president of the Israeli supreme Court, Ahron Barak:

         “Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law. It is, therefore, not merely a war of the state against its enemies; it is also a war of the Law against its enemies.”

In my article on the designation and material support laws (Cardozo Public Law, Policy & Ethics Journal, Volume 2, Issue 1, Spring 2003), I write that when conspiracy and material support laws are used separately or together, “there is danger of constitutional incursions and unsound convictions” which violate due process and the freedom to associate.  These violations, I write, “can only promote the goals of terrorists.”  [pages 124 and 160]

I write that there is no way around the requirement, under the U.S. Constitution and under the international laws of armed conflict, that prosecutions of terrorists “must rest on a requirement of knowledge of unlawful activities and a specific intent to support those unlawful activities.”  In other words, we cannot and must not convict suspected terrorists if there is no evidence they knew of and intended the crime. 
It is not only domestic law that forbids what Farmer proposes; international laws to which we are signatories, also do.
In Part Two of my article, “Bush War: Military Necessity or War Crimes?”, I write that the “Geneva [Convention] forbids ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.'”  I further write:   “It is forbidden under the Hague Convention ‘to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.'”  []

Finally, in my article, “The Dangerous World of Indefinite Detentions: From Vietnam to Abu Ghraib,” (Case Western Reserve Journal of International Law, Vol. 37, Nos. 2 & 3, 2006), co-written with Douglas Valentine (author of “The Phoenix Program”), I show that “where you find administrative detentions, you are likely to find torture.”  I write that the detention procedures used in Vietnam during the Vietnam War showed the connections”between administrative detentions, intelligence laws, national security courts, violations of international law, and torture.”

Thus, if looked at fairly, Farmer’s proposed “legislation allowing for preventive detention in future terrorism cases” “and outside the criminal justice system” overlooks the most basic moral and legal norms, is incredibly naive, and, finally, exceedingly dangerous, not only to democracy but to individual freedom.

Jennifer Van Bergen, J.D.
Author of “Twilight of Democracy: The Bush Plan for America” (Common Courage Press, 2004) and “Archetypes for Writers: Using the Power of Your Subconscious” (Michael Wiese Productions, 2007). Email: