The Pepperdine University School of Law held a symposium, Friday, January 19th, entitled, "The War on Terror: What are the Roles of Congress, the President, and the Courts?" It featured three panels covering different aspects of the war and an all-star cast of attorneys and academics. It quickly became evident that the opinions being expressed at this symposium would be drastically different from the opinions expressed at the UC Hastings symposium about the War on Terror. During the course of the Pepperdine symposium, President Bush was compared to FDR; the Hamdan v. Rumsfeld opinion was denounced as the worst Supreme Court decision since the Dred Scott opinion; and the unitary executive theory of presidential power was vehemently defended. No, this wasn't UC Hastings, the liberal law school that makes me feel like a moderate, this was a conservative stronghold, and I've never felt so much like a radical!
In The Art of War, Sun Tzu wrote, "If you know both yourself and your enemy, you will come out of one hundred battles with one hundred victories." Consequently, whether you're a conservative or a liberal, you need to know these arguments. They're being made everyday in newspaper editorials, blog posts, classrooms, courtrooms, Congress, and the White House. These arguments determine the fate of numerous human beings, including soldiers, detainees at Guantanamo, nations, and ultimately YOU! These arguments will determine who is an enemy combatant; whether the President can authorize warrantless, domestic wiretapping; whether the President can unilaterally declare war; whether the President can declare a federal statute unconstitutional and not binding on his power; and whether the President can increase the number of troops and possibly start a draft. I'm not an expert in these fields of law but these people are, which is why I present them to you for your erudition. To properly excercise our collective voice as the People of the United States, it is crucial that we understand what is happening, how it is happening, why it is happening, and who is responsible.
Panel 1: Terrorism and Separation of Powers
The first panel was a dialogue between John Yoo, professor of law, UC Berkeley, and Neal Katyal, professor of law, Georgetown University, and lead counsel in the Hamdan case. Professor Yoo's work has been compared to The Prince by Machiavelli. An article by Salon.com paints an interesting portrait of Professor Yoo:
"If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"
"No treaty," replied John Yoo, the former Justice Department official who wrote the crucial memos justifying President Bush's policies on torture, "war on terror" detainees and domestic surveillance without warrants. Yoo made these assertions at a public debate in December in Chicago, where he also espoused the radical notion of the "unitary executive" -- the idea that the president as commander in chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat. This concept is the cornerstone of the Bush legal doctrine.
Professor Yoo's statements at the Pepperdine Symposium had three main points. First, the President can unilaterally intitiate a war. It is not necessarily true that the President needs the approval of Congress to engage in an armed conflict, nor is it necessarily true that the President makes better decisions by consulting with Congress. Second, once the Nation is engaged in a war or armed conflict, the President has greater authority to make military and strategic decisions. Lastly, the Judiciary has taken on an unprecedented role by reviewing the decisions of the executive without waiting until the conflict has concluded. Decisions like Hamdan are a remarkable expansion of the Court's authority into areas that have traditionally been considered outside of the Court's sphere of influence. The recently passed Military Commissions Act of 2006 is Congress's attempt to curb the Court's abuse of power.
You can download Professor Yoo's lecture here, and it also has an introduction by James McGoldrick, Professor of Law, Pepperdine University: Download yoowithintro.mp3
Or you can listen to it here:
Unfortunately, Professor Katyal requested that his presentation not be recorded, and out of respect for him and his work, we have acquiesced. As one would expect from the lead counsel of a landmark ruling, Katyal's lecture was amazingly inspiring and enthralling. I highly recommend visiting NPR for an article entitled, "Hamdan v. Rumsfeld: Path to a Landmark Ruling" which explicates Katyal's work representing Salim Ahmed Hamdan. What follows below is a summary of Katyal's lecture.
Katyal began by addressing the recent comment made by Cully Stimson, deputy assistant secretary of defense for detainee affairs. Stimson's comment was essentially that corporate CEOs should pressure their law firms to not represent detainees being held at the naval base in Guantanamo Bay, Cuba (see David Luban's post at Balkinization for his incisive commentary and the audio). Katyal said that the War on Terror is going to transcend political administrations, and poses incredibly difficult decisions that have to be made, which demand the best in advocacy by both sides. The result of that is that we need to find mutual respect as advocates and as people of the academy toward those on the other side. "There has been a lot of acrimony on both sides and once we start seeing this as a long term threat instead of a short term political issue, then I think that provides the way forward, and the way forward is not name calling, not sloganeering, but just trying seriously to think about these ideas." As a consequence, he said that he will criticize some of the views expressed by Yoo but he will not criticize the man.
Katyal said that he supports the unitary executive theory because the underlying idea behind the theory is one of political accountability. Many of the decisions that people are taking issue with today are one's where there is no political accountability. The decisions were made in secret and the reasoning behind the decisions remain secret. When decisions are made in secret, then it undermines the foundation of the unitary executive theory, which is political accountability.
He said that Hamdan was about the executive disregarding treaties and statutes. The reasoning of the executive is that any treaty or statute that conflicts with the President's commander-in-chief power is unconstitutional. The Hamdan opinion came down the way it did as an attempt to stop the assertion of raw executive power that was being used to disregard statutes such as the Uniform Code of Military Justice and treaties such as the Geneva Conventions. The administration's position in the Hamdan case was that it did not have to give the "rights indispensable to all civilized peoples," as stated in Common Article III of the Geneva Conventions, in tribunals set up by the President when the death penalty or life imprisonment are on the line. Katyal acknowledged that this would be a hard position to argue given that the Geneva Conventions were ratified by a two-third majority of the Senate. This is typical of the administration, which continues to creatively interpret statutes and treaties to argue that they do not constrain the executive's power. Katyal said that he understands how this constitutional reasoning can apply in the short term, but it fails to make sense in the long term when Congress has had an opportunity to speak on the issue.
Moreover, he said that the Military Commisions Act of 2006 (MCA) only affects people who can't vote, the people who are the most powerless in our society. If you're an American citizen, then the MCA has nothing to do with you; i.e., the only way the MCA will effect you is if you're a green card holder or not a citizen of the USA. If you're not a citizen, then you get sent to Guantanamo and stripped of your habeas rights. Also, if you are not a citizen, you get sent to a special tribunal where the death penalty could be on the line, but if you are a citizen, then you get the "cadillac version of justice, the American civilian justice system." Historically, military commissions have never functioned in this manner. Citizens of the USA have always been subject to military commissions. Never has there been this kind of "slicing and dicing" of the population; the MCA is not a generally applicable statute.
He said that the MCA will ultimately be struck down because America stands for some fundamental principles and some fundamental values. "No matter who you are, you have certain basic fundamental rights-- you're treated fairly, it doesn't matter where you come from." He invoked the words of Justice Scalia, concurring in the Cruzan case, who said that the genius of the equal protection clause is to make sure that laws have to effect people equally and symetrically. He goes on to argue that if that's done, then the laws will ultimately look fair. When the population is "sliced and diced" as it has been by the MCA, then the people lose that structural guarantee. Moreover, organizations like Al Qaeda will use USA citizens whenever possible. When a citizen commits the same crime that a foreigner commits, he or she should be held to the same standards, and whatever that standard is, it has to be applied symetrically to citizens and foreigners alike. The MCA says that if you're accused of being an alien enemy combatant on United States soil, then you have no access to habeas corpus. Ever since Ex Parte Milligan that has not been the law. Katyal predicts that the MCA will be struck down by the Court for this reason.
He also said that he thinks executive power now is weaker than it has been in a long time. Agreeing with Professor Yoo, he pointed out that courts traditionally do not second guess the executive in times of war. If you're the President, it's really hard to lose a case in the Supreme Court during a time of war, but this administration has managed to do it three times. He thinks it's partly because of the positions the administration took and partly because there are not enough internal checks and balances-- a separation of powers-- within the executive branch. He said that people on both sides need to start thinking about how we resuscitate the tradition of divided government within the executive branch itself. For example, some rivalry between the state department and the defense department; i.e., how do we create overlapping jurisdictions in different departments to create some of the necessary friction that leads to better policy results?
The America he seeks, the one that makes him deeply patriotic, is the one that gives people oppotunities based on who they are and not where they came from. He concluded with the same quote he used in concluding his oral argument before the Supreme Court when presenting the case of Hamdan, which is a quote by Thomas Paine: "He that would make his own liberty secure must guard even his enemy from oppression. For if he violates this duty, he establishes a precedent that will reach unto himself."
Following Katyal's presentation, Yoo was given an opportunity to rebut Katyal's assertions and then Katyal was given an opportunity to also rebut. You can download this part of the panel discussion here: Download panel1rebuttal.mp3
Or you can listen to it here:
You can also download the question and answer session here: Download panel1QA.mp3
Or you can listen to it here:
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