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Nov. 15 , 2007

Sandra Day O'Connor on Civil Rights in an Age of Terrorism
Special from The Record

Sandra Day O'Connor
Former U.S. Supreme Court Justice
Sandra Day O'Connor

The story line sounded familiar: Not long after war breaks out, the president alters a long-standing criminal statute and proclaims that special military courts will oversee the cases of captured enemy soldiers.

The U.S. Supreme Court rules the plan unconstitutional. One justice notes that “the Constitution provides laws for rulers and people equally in cases of war and peace.”

Speaking at Columbia Law School Nov. 12, former U.S. Supreme Court Justice Sandra Day O’Connor cited that Civil War-era case – which landed on the high court’s docket during the administration of President Abraham Lincoln – to make a larger point. “Both supporters and opponents of the war on terror can learn something from history,” she said.

In a speech to a standing-room-only audience of more than 300 people, the first woman to serve as a Supreme Court Justice drew upon examples from conflicts across U.S. history and recent cases around the globe to illustrate the challenges illustrated in her lecture, “Balancing Security, Democracy and Human Rights in an Age of Terrorism.”

It is a topic with which she has firsthand experience.  In 2004, O’Connor wrote the
majority opinion in Hamdi v. Rumsfeld, which examined whether a U.S. citizen can be held indefinitely as an enemy combatant. Her opinion ruled that the detainee must be able to examine the factual basis of his detention and given the opportunity to rebut the allegations before a neutral decision maker.

However, “there remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal,” she wrote.

That decision was just one example, argued Columbia Law School Professor Tom Merrill in his introductory remarks, of the moderation that made O’Connor “one of the most important judges in American history.” Throughout her 25-year tenure, O’Connor “occupied a position of pragmatism in the center on a remarkable range of issues,” he said. She retired from the Court in 2006.

Still, O’Connor stopped short of offering specific solutions to the thorny legal issues raised by the current war on terror, which are far from being resolved, she said. “They are very difficult issues in part because they go to the very core of what we mean when we use terms like ‘citizen,’ ‘nation,’ ‘liberty,’” she noted. Indeed, the Hamdi case left many questions unanswered, she said, such as what procedures can be used to try enemy combatants. Cases across the globe continue to reflect the conflict.

In Germany, the highest criminal court ordered a suspected terrorist released, while the parliament passed laws to expand the powers of its intelligence service. In Britain, new laws allowed for indefinite detentions, but were struck down. Australia’s high court permitted detaining aliens indefinitely. The disagreements are heartening, O’Connor said. “At least democracy is flourishing, because people are engaging in many discussions across the globe about many issues facing us,” she said. “And that’s how it should be.”

O’Connor didn’t discuss cases likely to appear before the court. And she warned about going too far, pointing to the excesses of World War II, when U.S. citizens of Japanese descent were interned in camps. “If we lose sight of liberty in our efforts to defeat our enemies, the price may have been too high,” she said. It’s important to maintain a proper balance, she added, quoting words former Supreme Court Justice Robert Jackson wrote in a 1949 opinion that are equally relevant today: “The choice is not between order and liberty; it is between order with liberty or anarchy without either.”

The day after her speech, O'Connor met with faculty and students at the law school in an open-ended question and answer period. She also received the Wolfgang Friedmann Memorial Award from the Columbia Journal of Transnational Law in tribute to her work with the Iraq Study Group, the United States Institute of Peace as well as her numerous writings and lectures on the role of international and comparative law in the U.S. judicial system.

– Story by Adam Piore. Photograph by Eileen Barroso.