(Editor's Note: TLB would like to thank Diana Sanchez for her numerous behind the scenes contributions to this blog, which includes providing us with an audio recording of the panel discussion. TLB wouldn't be the same without her. Thanks, D!)
Law schools around the nation protested the “War on Terror” on Thursday, October 5th, by having teach-ins at which both students and professors missed class in order to address the fundamental transnational issues facing the US and its legal system. At UC Hastings, the American Constitutional Society and Amnesty International hosted a panel presentation on “The War on Terror: Guantanamo Bay & Domestic Implications.” The ACS will host another panel discussion about the boundaries of the executive power on Tuesday, October 10th, at 3:40 PM, in room A.
The "The War on Terror" panel featured four speakers, which are listed below in the order they presented. Listen to the panel introduction by Professor William Dodge here: Download hastingsintro.mp3
Joel Paul is a UC Hastings professor with expertise in international trade law and the WTO, presidential powers in foreign relations, foreign relations law, public international law, and international business transactions. Professor Paul discussed what constitutes a war. Listen to it here: Download hastingspaul.mp3
Evan Lee is a UC Hastings professor with expertise in appellate, constitutional law-Fed, and criminal law. He discussed the issues surrounding domestic surveillance and warrantless wiretapping. Listen to it here: Download hastingslee.mp3
Ian Wallach is a UC Hastings alumnus and former habeas counsel for several Guantanamo Bay detainees. See his article on the Jurist entitled, "No Habeas at Guantanamo? The Executive and the Dubious Tale of the DTA". He discussed his experiences representing detainees held at the Navy base in Guantanamo Bay. Listen to it here: Download hastingswallach.mp3
William Dodge is the UC Hastings associate academic dean and a professor with expertise in contracts, international business transactions, international litigation, and NAFTA Chapter Eleven. He is the driving force behind Hastings new transnational law course, and he is a former contributing member of Opinio Juris. Professor Dodge discussed the recently legislated Military Commissions Act and its many ramifications. Listen to it here: Download hastingsdodge.mp3
Listen to the Q & A session here: Download hastingsQA.mp3
What is written below is meant to be a rough summary of the panel's discussion. For a more in depth discussion please listen to the audio links.
Professor Joel Paul - what constitutes a war?
Paul first began with the inquiry "what does it mean when declaring a war against a form of violence?" As Paul notes, Presidents in the past had similarly declared wars as a metaphor (poverty, violence, drugs), but not as a legal fact. President Bush, on the other hand, confuses the metaphor of war with the reality of war. As Paul notes, this naturally has implications for prisoners captured during war.
Paul then went on to a Constitutional analysis. Article I gives Congress the exclusive power to declare a war. What was meant by that was the power to make war. The Framers specifically intended to tie the power to make war with the powers to fund attacks, similar to Congress's taxing power. Article II states that the President is the commander in chief. In Federalist 68, Hamilton said that that power is inferior to that of a monarch or the governor of New York. The Hamiltonian view is that the President’s power is one of the tactian but not the original authority to make war. Paul notes that there is significance evidecce to indicate that the Framers agreed that the only time the president could make war was to repel an attack. The Framers wisely recognized that a “time of emergency” would only be used to subvert the rights of people.
Turning to the current "war on terror" the question turns on what Congress authorized in this instance? After September 11, Congress authorized the President to use all necessary force to apprehend those who harbored or assisted persons and organizations that committed the World Trade Center attacks. In other words, the Authorization to use Military Force did not authorize a general “War Against Terrorism.” It authorized a response to a specific attack on 9/11. As O’Conner noted in Hamdi v. Rumsfeld “Congress has not given the executive a black check.” And yet the President has used it to get around a number of legal provisions and has manipulated the ambiguous character of the "war" when it is useful for the administration, including denying the right to habeas corpus, access to the rights guaranteed under the Geneva Conventions, and circumventing the Convention against Torture. At home the tone of patriotism is used to exploit the war for political purposes. The administration therefore abuses powers in ways to abuse libery but to also offend allies and weaken our authority to fight terrorism.
Paul concludes that as lawyers and law students we cannot depend on the courts to correct abuses of powers made by the political branches. Rather we have a duty to defend the Constitution and not just the court including through political action.
Professor Evan Lee - domestic surveillance and wiretapping
Professor Lee discussion focused primarily on the implications of Judge Taylor's opinion in ACLU v. National Security Agency before the Eastern District of Michigan Southern Division which concerned the National Security Agency's (NSA) wiretapping program known as TSP (terrorist surveillance program).
In summary, Professor Lee explained how Judge Taylor’s decisions is a specific rebuke of two things. First, Taylor’s opinion rejects the Government procedural arguments that the matter could not be decided on its merits. Foremostly, the Court relied on the Government’s statements that the TSP exists, continues without warrants, and concerns “communications” with parties in the US and those outside the US affiliated with al-Qaeda, working in support of al-Qaeda, or with organizations associated with al-Qaeda. As Lee explains, Judge Taylor’s decision on NSA concerns communications. As such, the Government's public admissions were sufficient to hold that the Plaintiff could make out a prima facie case. Lee noted how open-ended the description of the program is by pointing out there’s no definition of what “affiliated” with al-Qaeda means. It could mean any individual who has business with a member of al-Qaeda which could become significantly attenuated.
Second, Lee notes that Judge Taylor held the Government in violation of the First and Fourth Amendment and the seperation of powers doctrine. Lee concluded that the opinion was thin on some of the more intellectual questions that academics wished to see touched upon. Future courts reviewing this ruling and others will probably better address when and to what degree Congress may regulate the President’s commander-in-chief power. In addition, Lee noted that there is currently legislation (HR 5825) which would authorize warrantless invasion of Americans if there was an attack or an imminent threat of attack.
Ian Wallach - Defense of Guantanamo Bay Detainees
Wallach is an attorney who formerly represented Guantanamo Bay Detainees and currently works for the LA County Public Defenders Office. During his presentation Wallach essentially recounted his experience defending Guantanamo Bay detainees. Significantly, Wallach notes that first, the vast majority of those inside of Guantanamo Bay (about 85-90%) have absolutely no connection whatsoever with al-Qaeda. The majority of those captured and detained in Guantanamo were in most respects at the wrong place at the wrong. Nevertheless, Wallach secondly noted that there is significant mistreatment of detainees, including the gross application of torture.
During his presentation Wallach outlined the historical progression from the Detainee Treatment Act passed in 2001, to the Supreme Court's 2004 holding in Rasul v. Bush that Guantanamo Bay detainees have access to U.S. Courts to challenge their detention. The Center for Constitutional Right was responsible for spearheading the case to bring a habeas action. As Wallach notes the Rasul decision protected detainee's right to habeas.
Wallach then finally addressed the insincerity of Scalia’s argument which was that you can only bring a habeas action in the Court in which you are held. Scalia found that since there’s no court in Guantanamo there’s no habeas action. Following Rasul, over 200 firms began filing habeas petitions.
Professor William Dodge - “Military Commissions Act”
In Hamdan v. Rumsfeld the Supreme Court struck down military commissions established by the Bush administration to try detainees. The Military Commissions Act is a response to Hamdan. As Dodge noted, Hamdan had three princple findings: first, that the Detainee Treatment Act did not apply to pending habeas cases relying on other provisions which said it did apply to pending cases. Second, that the UCMJ applied to military commissions and required them to apply the same procedures as court marshals. Third, that Common Article 3 of the Geneva Conventions applied to conflicts not in the convention, including to al-Qaeda.
Following the Hamdan holding, the Bush administation, on December 6th, announced the existence of secret prisons. This announcement was disclosed in light of the McCain Amendment which prohibits the use of torture at Guantanamo Bay.
Dodge then explained that the Military Commissions Act establishes military commissions to try alien unlawful combatants, thus not applying to US citizens. Only evidence which is unquestionably obtained through torture is excluded. To protect classified information, information can be deleted in the statements. So while the accused can be formally present, the information used to convict him may be kept from him.
What disturbed Dodge is that the Act also purports to interpret the Geneva Conventions in a way which is binding on courts. It states that the military commissions are regularly constituted courts (an issue in Hamdan) and that it completely satisfies US obligations under Geneva. It also provides that no court can interpret this list and that with the exception for the Grave Breaches the President has the authority to interpret the meaning and application of Geneva. Dodge believes that this provision is likely to be struck down by the Supreme Court. The day before Hamdan was issued, even Roberts had held that under our Constitution, judicial power extends to treaties and includes the duty to say what the law is. While, the Court has traditionally given great weight to the executive’s interpretation of the treaties, Congress cannot tell the Court to give the President the final word of the treaty.
Moreover, the Act seeks to make the Geneva Conventions non-self-executing. It says that no aliens or lawful combatants may invoke the Geneva Conventions as a source of rights or any other action for which the US is a party to as a source of rights. In Hamdan, the Court did not decide whether Geneva was self-executing. This act removes that incorporation and purports to make them non-self-executing. Dodge believes that Congress can do this pursuant to the last-in-time rule.
It also deprives people of habeas protections. A major difference between the DTA and the Military Commission Act is that the MCA also applies to all pending cases. This is arguably unconstitutional. There is Supreme Court authority that Congress is authorized to allow the writ, except in times of rebellion or invasion. The questions here are whether the attacks on September 11 were an invasion and whether the crisis has not passed. What this act has done is permanently remove a category of individuals the right to bring the action.
For more information, please listen to the audio recording of the panel discussion.