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CIVIL LIBERTIES IN TIMES OF CRISIS

This panel was convened at 10:45 a.m., Thursday, April 10, by its moderator, Sir Christopher Greenwood of the London School of Economics, who introduced the panelists: Morris Davis of the United States Air Force; Julian Ku of Hofstra University School of Law; Elisa Massimino of Human Rights First; and David Remes of Covington & Burling LLP.*

Introductory Remarks by Sir Christopher Greenwood†

In his Grotius lecture, his royal highness Prince Zeid stated that the issues we have to debate at today’s panel are some of the most fundamental questions for any lawyer about the balance between the rule of law and the need for practical security. In the context of terrorism on a global scale, there are several fundamental questions I hope we will be able to explore in this panel. Can prolonged detention without trial ever be justified? If it is justified, does that mean it is only justified for foreigners or also for your nationals arrested on your territory? Are our current methods of interrogation, which in happier times we were quite clear were unlawful, justified in the more extreme circumstances of today?

I would like to make two broader points. First, these issues are topical but they are not new, having been debated for centuries. If one goes back to World War II, the English Final Court of Appeal handed down an important decision permitting detention without trial. One of the five judges dissented and the other judges didn’t speak to him for six months because they considered him unpatriotic. When a German group of saboteurs was detained in America for attempting to blow up a naval base, they were tried by military commission. They appealed to the Supreme Court but the men were executed before the reasoning of the Court was given. Even Cicero had no hesitation in executing people without trial in order to suppress a military coup. So these are important questions but not new questions.

Secondly, while these are questions of importance in the United States, they are not confined to the United States but are being debated in all societies. The House of Lords in England has struck down the principle of detention without trial for foreign nationals who can’t be deported because the only country prepared to receive them would be likely to torture them. It also struck down the use of evidence obtained by torture, irrespective of whether the torture was perpetrated abroad or in the United Kingdom. The European Court of Human Rights and the House of Lords have both upheld, on the other hand, the principle of detention without trial pursuant to a UN Security Council mandate, in Kosovo and in Iraq.

If I cannot go as far as Prince Zeid and invite you to elevate your vision, I would at least encourage you to get your vision working in as wide a perspective as possible and not to confine yourselves only to the American experience. We have an exceptionally well-qualified panel to debate these issues. To my right, Colonel Davis of the U.S. Air Force Judge Advocate Generals Corps, had been Chief Prosecutor for the Military Commissions but recently resigned from that role and has become a critic of the commission. At the other extreme, David Remes, a partner in the firm of Covington & Burling, has represented sixteen detainees before the commissions and other tribunals. Julian Ku is a professor at Hofstra Law School and has written extensively on the role of law in combating terrorism. Our fourth panelist, Elisa Massimino, is the Washington director of the advocacy organization, Human Rights First.

* The panel wishes to thank Christopher Evans who served as reporter for this panel, and Michael Scharf, Jennifer Mesko, Brandt DiChiera, Sarah Antenucci and Allison Kretz for preparing the following edited transcript.

† Professor of International Law, London School of Economics; now Judge, International Court of Justice.

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Remarks by Colonel Morris Davis*

Let me begin with the disclaimer that my statements represent my personal views and not those of the administration, the Department of Defense (DoD), or the Department of the Air Force. I spent two years, from September 2005 to October 2007, as the chief prosecutor of the Military Commissions. In June 2007, I wrote an op-ed for the New York Times defending Guantanamo Bay. In an August article for the Yale Law Journal Pocket Part called ‘‘In Defense of Guantanamo,’’ I made the argument that the facility was grossly mischaracterized and that the military commissions process was a fair process, which I firmly believed at the time. Six weeks later, I quit.

One thing I learned when I came to the military commissions was the relevance of what Robert Jackson said about his involvement with Nuremberg. A lot of the issues that I found as chief prosecutor, he had faced sixty years earlier. Issues on ex post facto application of the law, on making up rules as you go, and a lot of the arguments and criticisms that were directed at military commissions were the same criticisms that Nuremberg faced back in the forties. One of my guiding principles was that Robert Jackson, before going to the Supreme Court and before Nuremberg, was the attorney general. He was appointed in 1940 when the agency was demoralized and in shambles. Robert Jackson said:

The qualities of a good prosecutor are as elusive and as impossible to define as those that mark a gentleman, and those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes and who approaches his task with humility.

I thought that’s what we tried to do when I was at the military commissions as the chief prosecutor.

I resigned as chief prosecutor on October 4, 2007. The day I resigned, they issued a gag order and said I could not talk to the media about why I resigned. It was issued on a Thursday, and on Friday they held a press conference to announce why I resigned, which was the day before a three day holiday weekend. For DoD, on the PR front, that was the equivalent of hitting a home run.

I spoke last Friday on a panel talking about what Dr. Martin Luther King’s views might be on a variety of issues, including terrorism. Dr. King published a book entitled, Where Do We Go from Here: Chaos or Community? In the book, he wrote:

Many of the ugly pages of American history have been obscured and forgotten. A society is always eager to cover misdeeds with the cloak of forgetfulness, but no society can fully repress an ugly past if the ravages persist into the present. America owes a debt of justice, which it has only begun to pay. If it loses the will or slackens in its determination history will recall its crimes and the country that would be great will lack the most element of greatness: justice.

That’s the important question we face today—do we have justice in the way we deal with the detainees in Guantanamo Bay?

I became a critic of the military commissions after I resigned. I don’t necessarily blame everyone involved in creating the process. It’s easy to sit here today in April 2008 and critique the process, but I think you have to go back and put yourself when the order came

* Former Chief Prosecutor, Military Commissions at Guantanamo Bay.

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out in November 2001. 9/11 hit close to home with the crash into the Pentagon, followed up with the anthrax in Washington, and also the Beltway sniper. We were about one event away from sheer chaos in Washington and that was the backdrop to what we’re living with now. I don’t think American officials wished 9/11 on anybody but it was an opportunity to execute a game plan, and I think we’re living with the results of that today.

I don’t believe detainees have constitutional rights. My view is that the Constitution starts with ‘‘We the people of the United States’’—it is a document written for the benefit of ourselves and our posterity. It doesn’t say it’s for the benefit of everybody, and particularly not foreigners outside the country who are intent on destroying the Constitution. That’s not to say that the detainees don’t have rights. You find the source of their rights in Common Article 3 of the Geneva Convention, where it talks about the rights recognized as indispensable by civilized people. It’s a concept that’s easy to say and hard to define. Justice Stevens said in the Hamden opinion, ‘‘you need to look at Article 75 of the Additional Protocol where it fleshes out what those indefensible rights are.’’ If you look at the Military Commissions Act against Article 75, I believe that Congress gave us a decent piece of legislation that provides a framework, that if properly executed could provide for full, fair, and open trials. Unfortunately, there are political appointees involved in the process who are more concerned about ensuring particular outcomes than they are with doing justice, which led to my resignation.

We’ve reached a tipping point where if military commissions are going to be saved, three things are required. One is to get the politics out. If it’s a military commission, let the military run it and not political appointees. Number two is a commitment to openness and transparency. You can provide the most perfect trial in the history of mankind but if you do it behind closed doors, no one’s going to believe it was fair. We’ve got to take the time to declassify the evidence to have open trials and have a firm commitment that we’re not going to offer any evidence obtained by water boarding. Third, there has to be total independence of all players involved in the process: the prosecution, the defense, and the judges. If you look at the international tribunals created by the UN, they all guarantee the independence of these parties. If it’s internationally recognized, I don’t think we can articulate a reason why in our process the convening authority, a political appointee, pulls the strings of the prosecutors. I know they say that doesn’t happen, but in the past week the charges against Khalid Sheikh Mohammed were accidentally released to the defense, two weeks prior to the charges being sworn. They weren’t released by the prosecutor but by the convening authority, who’s supposed to be the neutral and detached party. She shouldn’t have seen the charges in advance but nonetheless, she did.

Remarks by David Remes*

I’ve been involved in the Guantanamo Bay litigation. I was able to get them to halt the transfer of an Algerian client back to Algeria where the government associates him with al- Qaeda and al-Qaeda associates him with the government so he faced an unhappy fate if he were to go back. The dissenting judge in that case, Judge Randolph, dissented on a surprising ground, claiming the majority had taken a simple case and made it tangled. That’s what has happened since 9/11 and the ‘‘war on terror’’—a simple situation made tangled. We shouldn’t be operating under the paradigm of the war on terror but under a criminal law paradigm.

The war on terror has brought us a worldwide al-Qaeda network that never existed on the scale that it now exists. Our war on terror has been completely counterproductive. It reminds

* Partner, Covington & Burling LLP.

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me of the sorcerer’s apprentice, where he tried to use his magic, but the magic ended up backfiring on him. We’ve misfired in Pakistan and Afghanistan; the very people we tried to topple are coming back and Iraq is a mess. Do I believe in increasing domestic security? Of course I do—everybody was asleep at the switch on 9/11. But when going after terrorism, as a British historian said, ‘‘How do you wage a war on a noun’’? I thought that was pretty forceful. As far as I can tell, trying to fight terrorism is like trying to put a cloud in a box. It simply can’t be done. You have to go after people who commit specific crimes.

Now turning to the issue of detention and the military commissions, I have another pragmatic objection: when you detain somebody, you’ve determined that he’s a threat. Accepting the war on terror paradigm, how do you know that you’ve got the right guy? You can’t know until you go through a formal process of justice that resembles our system.

Our justice system is one of the most capable justice systems in the world of distinguishing the guilty from the innocent and reaching accurate results because there are strict controls over the evidence that can be introduced and the defense has full rights to challenge the government’s information. It is fair process designed to produce reliable results. The system that was created by the administration, both with the Combatant Status Review Tribunals (CSRTs) and the military commissions, is deeply flawed because it was created to produce convictions, not correct results.

From a philosophical approach, it doesn’t befit the United States to have show trials. As for the idea that ‘‘We the people’’ consists of citizens of the United States, that’s been rejected by the Supreme Court. Foreign nationals, at least when they are lawfully within the geographical boundaries of the United States, have most of the same rights as citizens. We don’t distinguish; there would be equal protection problems if we did. The argument that justifies unequal treatment for the foreign nationals at Guantanamo is that they’re not in the United States. The Supreme Court rejected that in the Rasul decision and I believe they’re going to reject that as a constitutional matter in the Boumediene decision.

The idea that these guys get what they deserve assumes that they’re the bad guys, and that to me is the fundamental problem with this paradigm—that they deserve second-class justice. I go back to my initial contention here: that the war on terror is the wrong paradigm and that the premise of justice is that you have a right to judge. The only people we have a right to judge are the individuals who committed crimes against the United States.

Finally, this is not about terrorism—not at all. I believe that this has been about the effort of this administration to assume the powers of an absolute monarch. They have used the emergency climate that they’ve created to exercise powers we’ve never dreamed that presi- dents could assert. The idea that the Fourth Amendment doesn’t apply within the United States when you fight terrorism is suggestive of martial law on the sly. They just haven’t told us about it yet.

I’ll close by going back to this idea that Judge Randolph put forward, that we’ve taken a simple situation and we’ve made it tangled. If we had simply stuck with the crime paradigm, we wouldn’t have all the problems we have today with terrorism.

Remarks by Julian Ku*

I want to take a broader look at some of these issues and put the various litigations arising out of the war on terrorism into a larger doctrinal context. Throughout U.S. history, U.S. courts and policymakers have struggled to resolve tensions between the protection of civil

* Professor, Hofstra University School of Law.

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liberties and wartime exigencies. The U.S. litigation on these issues since September 2001 has exposed deep legal fault lines over the best way for the U.S. system to resolve these enduring tensions.

I’m going to divide my talk into two parts. First, I’m going to offer an overview of these legal fault lines that have emerged out of these various strands of litigation. Second, I want to focus on the most important fault line, the issue of the applicability of U.S. constitutional protections to non-citizens overseas or extension of private rights of action to non-citizens, absent Congressional authorization. I think that is the most important legal fault line and maybe the most important jurisprudential consequence long-term of these various litigations since September 2001.

I want to isolate what these legal fault lines are and how these divide the administration from its critics. I do differ from David regarding his suggestion that the arguments the administration has made are monarchist arguments that they dreamed up after 2001. I think that these are enduring arguments drawn from at least the U.S. experience and maybe other countries’ experiences. They’ve always existed in U.S. constitutional history.

As to the first legal fault line, the administration and its critics have been deeply divided over the proper role of Congress in authorizing wartime policies by the president. In general, the administration has argued that broad delegations of congressional power justify the wide range of wartime policies taken by the executive branch, such as military commissions. Critics have generally argued that clear and specific congressional authorization is required before the executive branch can take these actions and this is the classic ‘‘separation of powers’’ battle.

Turning to the second legal fault line, the administration and its critics have been deeply divided over the applicability of, and the control over, the interpretation of international law. The executive has argued that international law is either unenforceable domestically or that the interpretation of international law should be by the executive and that the executive should be accorded broad deference. Their critics have argued that the courts in the U.S. have an independent duty to interpret such laws and to extend private causes of action under such laws. Since many of the key sources of legal protection for detainees can be found in international law, this has obviously been also a secondary, but an important, legal flashpoint in these litigations.

Now, the third legal fault line: the administration and its critics are deeply divided over the applicability and enforceability of constitutional rights for detainees who are held outside the territorial boundaries of the United States. The administration has accepted that U.S. citizens and non-U.S. citizens who are in the United States do have constitutional rights. The question has been focused on what kinds of constitutional rights, if any, non-citizens have if they are outside the United States. The courts have generally sided with those that say that Congress needs to provide specific and clear authorizations for most U.S. government actions that the administration has tried to do. Of course, Congress has largely then acted very quickly to enact those specific and clear authorizations for the president. What we are left with is the last major U.S. legal fault line, which is extending constitutional protections to non-citizens who are detained overseas.

I want to focus on why this is such an important issue and why I think this is different from the other two fault lines I’ve identified. This is the last-stand argument for people who represent detainees held by the United States overseas. It has largely been raised in the context of Guantanamo Bay. The President and Congress have acted to limit any rights they might have under international law or federal statutory laws.

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As a matter of judicial precedent in the United States, this is the hardest claim for them to make and for good reasons. I want to offer a few reasons to be cautious, or even be against extending constitutional rights to non-citizens who are overseas. The argument is a pragmatic one but there are also formal arguments. Even a court in Canada has very recently released an opinion which has determined that the Canadian Charter of Rights and Freedoms does not extend to protecting Afghan detainees in Canadian custody in Afghanistan, and they actually invoked international law to justify their reasoning.

My argument is different. The case for extending the Constitution is that any U.S. govern- mental policy must comply with restrictions imposed by the Constitution. The protection of the Constitution should follow the flag at least where a violation of fundamental Constitutional rights is alleged. This argument is powerful, but not irrefutable. The courts have never accepted this and even if such constitutional protections extend overseas to non-Americans, the decision as to whether and how to enforce those rights is not solely a question for the U.S. judicial branch. When and whether an individual can bring a private cause of action in U.S. courts has traditionally been a question for Congress. It would be a significant departure if the courts start creating constitutional rights of actions for non-citizens overseas.

The U.S. government does face a variety of legal and political constraints that already constrain its actions overseas, not the least of which are the laws of foreign countries, international law and its own statutory laws. Adding constitutional limitations on U.S. actions overseas is radically different from these other kinds of legal restraints. Unlike the other kinds of legal limitations on U.S. foreign policy, constitutional requirements cannot be repealed, abrogated or modified by a decision of the political branches of the U.S. government. The interpretation and protection of constitutional rights is the sole province of the courts.

I’m not as confident as some of the critics of the administration that I know the right mix of rights and liberties which should constrain the U.S. government when U.S. personnel act overseas. I think the courts can sometime make mistakes. When they make mistakes in determining the level of rights protection detainees should get overseas, and when they make this on the basis of constitutional law, Congress cannot fix that mistake or reverse their judgment. Congress has already reversed the judgment of the courts in almost every one of the major Supreme Court cases we have had since September 2001, but if we move to the constitutional level, they cannot do so. The court will reign supreme, and I’m not confident that that’s the sort of system that makes sense given the variety of uncertainties and difficulties that we face. These are the reasons that I think this is the most important legal fault line. I’m not confident I know what the result will be, but we need to think carefully before we jump on the bandwagon of extending constitutional rights to non-citizens outside the United States.

Remarks by Elisa Massimino*

My perspective on this issue is informed by my work as a human rights advocate. Before 9/11 most of my time was spent criticizing the human rights behavior and policies of other nations and trying to get the U.S. government to use its considerable moral authority to get other governments to clean up their acts. The last seven years have been a different experience for me and my organization. I am often asked why I cannot I find something better to do with my time in a world filled with human rights violations that are so dramatic. I continue to do this work because when we talk to our human rights colleagues who are on the front

* Washington Advisor, Humans Rights First.

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lines, trying to promote human rights and democratic values in their own societies and ask them what we can do to help, they all say the same thing: ‘‘Get your own house in order because we need the United States to be a strong leader in human rights internationally.’’

It is interesting to think of the ‘‘politics of international law.’’ There are a lot of different meanings of that term but I think of it as the political power of a country like the United States and the inextricable link to its respect for international law, its belief in the existence and integrity of international law. The movement away from this link is reflected in so many of the U.S. government’s policies in the so-called ‘‘war on terror.’’ This is a problem not as much for detainees at Guantanamo, as important as their rights are. Rather, the people who will ultimately feel the effects of the erosion of the core concept of human dignity that is enshrined in human rights law are in the darkest corners of the world, in prisons where their governments will no longer feel the weight of U.S. moral authority in criticizing their performance. That is why we are continuing to do this work and why I think this meeting is so important.

Christopher said that these issues aren’t new. Not only is the challenge of terrorism not new, but the idea that well-meaning democracies can tinker with the international norms on human dignity and rights that protect humans from torture is also not new. And it always leads to the same result. It would behoove the next president to think about learning some of those lessons by listening to the experiences of other governments in dealing with this and learning from the mistakes that they have made.

You don’t have to doubt the motives of the current administration to criticize the execution of the counterterrorism policy. There clearly was an independent policy to promote executive power that’s embedded in many of these policies. The policies that I have worked on most closely have been interrogation standards and the CIA Interrogation Program, ‘‘Advanced Interrogation Techniques.’’ I think there was a good faith belief that the way to advance national security was to enhance the power of the executive and to get around these laws. I will not go into the history of how that happened but I would direct you to read the latest memo that was released in the series of John Yoo memos and you can see how this happened: how politics, intending to be the servant of justice, infested law and made it an obstacle to get around. The shock of 9/11 caused many policymakers to jump to this urge to think outside of the box, giving them the desire to come up with new ideas because we failed. As David pointed out, there were so many people sleeping at the switch. They wanted a solution. The chosen solution by many people was to set aside many of the values and assets that we have in our legal system which have, over time, come again to be recognized as assets to our national security in this fight against al-Qaeda.

I want to challenge the idea that led to many of these errors, namely that there is a profound tension between human rights and advancing our security in the battle against terrorism. I do not have time to detail the way in which this is a false dichotomy in many respects but one only needs to read some of the newest version of the counterinsurgency memo drafted that the military currently operates under, to see that in a fight like this, as Secretary Rumsfeld once wondered aloud, ‘‘I wonder if we’re creating more terrorists than we’re killing with some of our strategies’’? That’s the right question to ask in the current counterterrorism struggle. The way forward, as laid out in the counterinsurgency manual, is to stay true to your values, maintain the moral high ground, use the criminal justice system in order to marginalize and delegitimize the enemy in the eyes of the society from which it gains its recruits and stay within a criminal justice framework and the rule of law. These are the elements of success in counterinsurgency theory that are based on our most recent experiences.

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Those on the frontlines of the battle with al-Qaeda knew instinctively what a profound error it was to reinforce al-Qaeda’s vision of itself as a revolution force in an epic battle with the United States. If you read the CSRT transcripts from Khaled Mohammed, you will see how our own policies have enabled the enemy to elevate themselves in the eyes of their supporters as combatants in a global war against the United States. That is not good for our security—it has done violence to some of our most cherished human rights principles, and it has led to an effort to twist the laws of war in such a way that endangers our own men and women in uniform in future conflicts.

I close by challenging us to think about whether the impetus to step away from international and domestic law on these issues was really ever justified and whether these tensions were ever as extreme as some proposed? I think they are not and that Julian is right that the next president will have to deal with these issues and grapple with them in much the same ways. One of the principles that ought to guide the next occupant of the White House is to have a sustainable counterterrorism policy, and that policy cannot be sustainable unless it reflects a respect for our laws and values.

Discussion:

Greg McNeal:*

We have an era of legislative acquiescence and executive overreach. I’d like to hear from the panel as to why we don’t discuss more often where Congress is in this, and why Congress isn’t stepping forward and taking some role in defining a clear policy for the United States.

Scott Sullivan:†

It seems that all three branches of the government, right or wrong, have bought into the war paradigm at one time or another. That invokes international humanitarian law, the law of war, and this idea of preventive detention. Obviously, part of the detention regime in the law of war is designed to prevent individuals from rejoining the fight. So if we’re moving towards a preventive detention regime as it relates to the war on terror, what should be the guiding principles that we consider?

Sir Christopher Greenwood:

I wonder if you would all comment on why you think it is that the United States is alone in talking about the war on terror—that none of the European countries, including my own, have actually accepted that legal analysis.

Ilya Shapiro:‡

Is there a difference between national security and law enforcement? And if there is, what implications does that have on things like intelligence gathering, treatment of detainees and prosecutions, and other related extensions of Constitutional rights?

* Professor, Penn State University School of Law. † Professor, University of Texas School of Law. ‡ Senior Fellow, Cato Institute.

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Greg Fox:*

Julian made the argument that the distinctive quality of extending constitutional rights to aliens abroad is that Congress is written out of the equation (no congressional check) and all we have are the courts to develop the nature and extent of the rights. But hasn’t Congress itself, in effect, done that by passing the Military Commissions Act and specifically the habeas stripping provisions? If the government were to win the Boumediene case, you could say that aliens abroad have all sorts of constitutional rights, but they would never be able to get them before a court to be exercised. And so, even in that area, Congress has been very much involved.

Chris Ravens:†

What damage has the ‘‘war on terror’’ done to both domestic and international human rights regimes around the world, given the expansion of executive power and given that all countries had to enact counterterrorist legislation which has led regimes in Pakistan, for instance, to use that against insurgents rather than what we’d classify as global terrorists?

Andrew Plusco:‡

Does the panel have any opinion on the use, especially in Britain, of civil preventative orders and in the fight against terrorism, specifically if departing from the criminal law in favor of civil could potentially be preferable to departing in favor of military justice?

Christina Cerna:§

It seems that human rights are somehow out of this discourse since the decision of the United States to detain people in Guantanamo, deciding that international human rights law is not applicable, and the view of the Supreme Court that international human rights law is somehow not self-executing in the United States. It is clearly a part of international human rights law that non-citizens, when they are detained if they are under the exclusive authority of the United States, are entitled to be informed of their charges, not to be held in indefinite detention, entitled to a fair trial, and must be accorded traditional guarantees of due process. Are human rights dead in the United States, and could Professor Greenwood comment on the situation of how Britain treats non-citizens under the exclusive authority of British troops outside of the U.K?

Diane Amann:||

It’s interesting that the panel is called ‘‘Civil Liberties versus National Security’’ because that’s a profoundly domestic way of looking at the problem. Has anyone thought that the international concept of human security might be useful in thinking about this? It seems that if we approached the beginning of these questions by thinking about the humans that are involved in the security of humans in a broad sense. As Prince Zeid said, ‘‘it’s people that

* Professor, Wayne State Law School. † American Society of International Law. ‡ Student, London School of Economics School of Law. § Principal Human Rights Specialist, Inter-American Commission on Human Rights. || Professor of Law, University of California, Davis.

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are involved in all sides of this.’’ If we think about the problem in that way, would it change the way that we think about it? Because when you set up an ‘‘either/or’’ dichotomy, you are suggesting that either one or the other is right.

Craig Martin:*

The argument of Professor Ku, if taken to his conclusion, is that Congress should be more involved in deciding the right mix of rights. He is skeptical as to whether the courts should be left with the sole prerogative of determining the rights. The Constitution itself isn’t necessarily the right institution to look to, but you have a Congress that is redefining the applications of international law and defining international law out of the mix and you’re actually arriving at a position that the executive has been driving towards for many years, which is that no law would apply to detainees. If international law and the Constitution are taken out of the mix, you’re left with this black hole. So how do you see the relationship between international law? And you refer to Canada, but as I understand it, being a Canadian lawyer, one of the bases for the decision of the federal court is that if the charter doesn’t apply, international law will apply, and it will apply as understood internationally, not as redefined by Parliament.

Elisa Massimino:

The question of where Congress is, is one that a lot of people have been asking. I wouldn’t want to give the impression that the members of Congress haven’t done anything, because they have. Most recently, they passed legislation that would require adherence to the interrogation standards in the Army Field Manual by all agencies of the U.S. government. That was passed in both houses and vetoed by the president. I don’t think it’s fair to say they’re not doing anything. I do think it’s fair when we’re looking at the balance of powers to say that each branch has to play its role. Also, the judicial branch for the first couple of years was very silent.

This question about the war paradigm is also related to the view of executive power in wartime. While there is a false dichotomy between war and criminal justice, it would be a mistake to take either one of those tools of advancing national security off the table completely. We have been out of balance tying one hand behind our back, saying that the criminal justice paradigm is somehow not muscular enough to deal with terrorism, and that we shouldn’t use it. In fact, we have been using it. But this caricature that it is not the right tool in a counterterrorism strategy is wrong. I hope we’re not moving towards a system of administra- tive detention, and if we assume that we are, we’re about to make the same mistake that we have made in the past, which is to leap to a solution without fully exploiting the tools that we already have. I would like to see us press the limits of the criminal justice system.

The damage to international human rights regimes and the norms themselves is why it’s not just the political power of the United States that’s missing on the international stage. Not the enforcement of the norms but the erosion of the norms that has happened because one of the leaders on the development of those norms, the leader, the United States, now questions their applicability and their universality in a way that never has been done before, and the damage is profound and is going to take a generation to repair.

I agree that the civil liberties and national security dichotomy is really idiosyncratic to the United States, and there is some potential in thinking about the concept of human security

* Visiting Lecturer, Osaka University.

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as a way to bridge that dichotomy. I do think that terrorism violates one of the most basic of human rights, the right to life, and that we have to think about this problem in that way.

Julian Ku:

I got a lot of questions about the role of Congress because I suggested that Congress should play the lead role in determining the scope of protections for non-citizens detained by the United States overseas. I don’t disagree that Congress has done something—in fact, that’s part of my argument. Congress has, at various times, chosen to permit non-citizens to get protections. What I’m suggesting is that the courts could erect a situation where Congress cannot overrule them. There are two contexts where this could happen. First, if they do recognize that habeas corpus extends outside the United States, then that gives non-citizens a forum for which to exercise their constitutional rights, and then you’re going to see an irreversible judicial supremacy in that area. The second area that is potentially problematic is Bivens Claims—claims that courts can imply or infer private causes of actions for constitu- tional violations even when there is no specific congressional authorization to do so. If there are constitutional rights for non-citizens overseas, you can bring Bivens Claims, which people have done, and that’s an example for a potential problem and why I suggest Congress should be allowed to control whether or not to extend a private cause of action overseas.

To respond to the second question, ‘‘What about international law? Congress and the administration have defined international law in a way that leaves detainees with no rights,’’ I’m not so sure that’s entirely true. Sometimes they’ve done so, sometimes not. That’s part of where I’m agnostic about the right result and where everyone else seems sure. You should have the same level of protection in either international humanitarian law and we want that litigated in our domestic courts. My feeling is that Congress might decide reasonably that there are some rights that need and needn’t be litigated in U.S. courts and we’ll make the decision as to which ones—that’s sort of a judicial supremacy argument.

David Remes:

I agree with Julian to this extent: if the political branches want to establish an American gulag around the world, that is a policy choice and I don’t think courts can prevent that. Similarly, if the political branches decide to use the war paradigm versus the criminal law paradigm, that’s also a policy choice. I don’t think the courts can do anything about that so I’m not making extravagant claims for judicial supremacy.

In terms of the role of Congress and the role of courts, ‘‘the perfect storm’’ is what we have here. What happened when President Bush became president was a situation where there was an unfortunate alignment of the three branches. The effort began in the Reagan administration to restock the D.C. circuit with reliable conservatives, deferential to presidential power. This finally created a very conservative, executive-oriented court.

Then you had a Republican Congress that was compliant with the administration. I don’t regard Congress as having made any independent judgments on this. The Military Commis- sions Act was stampeded through by the administration and Congress in the face of the 2006 elections. I believe that the administration will make the same effort to get legislative authorization.

Finally, you had a megalomaniacal philosophy on the part of the administration that the president could do anything he wanted in the name of fighting a war on terror, in particular this war that extends globally forever. If that’s not a prescription for monarchical power, I

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don’t know what is. This justification becomes absolute and unlimited by the very definition of the war against terrorism.

Colonel Morris Davis:

It’s a difficult question, trying to combine national security and the criminal process into something that’s fair. I disagree with David that when it comes to war crimes, the criminal paradigm isn’t the one that we ought to apply. The Military Commissions Act was a good piece of legislation, but political appointees have skewed the execution to achieve an outcome. If we had carried it out the way Congress intended, we could have done justice.

You talked about why Congress sat on the sidelines. ‘‘Either you’re for us or against us’’ has become a rallying cry and Congress bought into that. There was hysteria in Washington back in 2001, and nobody wanted to be on the other side of the equation.

One of the things I advocated for when putting together the Military Commissions Act was getting Human Rights First, Human Rights Watch, and Amnesty International involved. I advocated for everybody to share ideas. It wasn’t the perfect solution but I thought that everybody ought to have an opportunity to contribute. I was told that we don’t need their input because we know how to do this and seventy-seven months later, we haven’t done anything.

It’s like trying to put lipstick on a pig—trying to fix this process—you just aggravate the pig in doing it. I’ve made trips to ‘‘Gitmo’’ and there are people who genuinely hate us. I’m not willing to give them a hug and apologize. They ought to be held accountable, but they are entitled to a fair trial and there’s a way to do that. We need to figure out how to do it.

Sir Christopher Greenwood:

I want to come back to the questions specifically addressed to me about what’s been happening in the United Kingdom. First, whether the constitutional protection would apply to non-nationals, and in particular, to non-nationals abroad. The question wouldn’t arise in that form in England because we don’t have written constitutional protections of that kind. It arises instead on the basis of the European Convention on Human Rights and the Human Rights Act. The House of Lords has held that there would never be any question about non- nationals in the U.K.; their rights would be the same as those of nationals. In relation to non-nationals in Iraq, the House of Lords decided that the European Convention on Human Rights does extend to an Iraqi national detained by British troops in Iraq because the fact of his detention brings him within the jurisdiction of the U.K., which is the test in Article 1 of the European Convention. If the convention applies to him, so does the Human Rights Act, not withstanding the argument that the Human Rights Act was not intended to apply extra-territorially. On the other hand, neither the act nor the convention would give rights to individuals on the street in Baghdad or Basra. The fact of the British occupation of Basra during 2003–2004 did not act to bring the entire population of the city within the jurisdiction of the U.K. I’ve tried to describe those two cases as impartially as I can, but I must expose the fact that I was counsel for the British government in both.

The other point that the House of Lords has decided is in the case of a dual British and Iraqi citizen detained by British forces in Basra, after the end of the occupation and under the terms of the mandate in UN Security Council Resolution. The House of Lords decided unanimously that the obligations created by the Security Council Resolution, under the effect of Article 103 of the United Nations Charter, override the protection of the European

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Convention on Human Rights, but only to the extent that there is an actual conflict between the two. They have left open various questions about the ambit of that decision. The two cases in questions are the Al-Skeini, which is the earlier one about deaths in Iraq, and Al- Jedda, the case about the detainee.

There was also a question about control orders. After the House of Lords struck down detention without trial in Britain of foreign nationals who could not be deported because there was no safe country to which they could be deported, the government devised the control order, which is for a person who cannot be deported on national security grounds because of the absence of a safe state although you can restrict their movement in various ways in a form of house arrest. The courts so far have decided that certain types of control order are contrary to the European Convention and Human Rights Act while others are not. But the matter has not yet gone to the House of Lords.

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