Debate in Paradise
Today’s blogging post is a debate that I helped setup in my position as Speaker’s Chair for Federalist Society with my counterpart, Danielle Goldstein of the American Constitution Society. I’ll try my best to get the pertinent arguments down, but no promises. And if I misquoted one of the speakers, my apologies.

The topic is law executive power and national security. The moderator is Prof. Tino Cuellar. The debaters are Prof. John Yoo of Boalt Law School at Berkeley (famous for writing the Bybee memo that argued that torture was legit under the law under certain circumstances) and Prof. George Harris of McGeorge Law School, partner of Morrison Forrestor (MoFo) (famous for being counsel to John Walker Lynn)

Prof. Yoo frames the question of whether non-state actors such as Al-Queda should receive the benefit of our criminal Justice System.
Prof. Harris argues that the question is whether our civil liberties are capable of
accommodating the war on terror.

Tino Cuellar will now ask the first question. One side will answer, then the other side will respond.
Legend – C= Cuellar, H=Harris, Y=Yoo

C: Prof. Harris – are there any circumstances in which you think the president can detain a citizen as an enemy combatant without a hearing?

H: Yes, if we had a sufficiently large crisis, and were willing to put enough confidence in the executive. The difficulty here is that the crisis is not of a defined period of time, but rather is potentially a perpetual war. Here, finding the enemy is determining their guilt. It is circular. While this is possible theoretically, we are not there now. If we follow the administration’s policy, we are carving out an area of civil liberties

C: Suspension is critical in your account (of habeas course)…

H: I don’t think the president has the power to detain somebody without any review (hamdi)

Y: We agree on the following – there is a rule under the “war system” of detention. I disagree with him under the use of the word guilt. That is a criminal law concept. Guilt is a retrospective concept. Military system is different – it is designed to prevent FUTURE harms. It is not a question of guilt/innocence. Under the military system you can detain enemy combatants until the end of the conflict (not necessary to know when it ends under Hamdi). Court made clear that the executive is able to detain until the conflict is over – not relevant now to define when.
Hamdi also made clear that this rule applied it to U.S. citizens. However, the supreme court’s cases are clear – citizens who are enemy candidates get hearings (harris was correct here). But in enemy combatant cases the question is all about WHAT THE STANDARD OF REVIEW do the federal courts use to review the executive branch’s citizens. Court wouldn’t pick a std. of rev. in Hamdi. More clear to focus on what the hard choices are.
C: Speaking of the std. of rev., at some level there is a dispute at how much power the fed. Gov. should have in detaining somebody. One justice said that “the very core of liberty secured by the anglo-saxon … [is freedom from detainment]”

Y: This is an example of Scalia’s use of overly vivid language. Let’s be frank – there is nothing in the Habeas Corpus body of statutes (?) that suggests how Habeas proceedings are to run, and there is no incentive for the legislature to pass such a statute.
The gov’t proposed standard was drawn from immigration law. There the std. Of rev. is the “some evidence review” – if the exec. Branch provides “some evidence” it gets some deference from the reviewing court for its decisions.

H: First, on this point of what the gov’t’s position is, it evolved. He goes on talking about how the gov’t provided only a three page hearsay memo to the reviewing court in Hamdi and said that was all it needs.
Yes, Hamdi did not give all the answers by any means. Yes, it said that the gov’t had the power to detain enemy combatants in time of war. What the court doesn’t answer (question presented by pedilla) is can we apply this (sorry, somebody whispered to me, so I lost that ) – if American detained, what is the std.? Some evidence?

C: What is your explanation of what meets “some evidence”? Does the three page Memo meet it?

Y: Yes, it was a summation of all evidence. You could call every soldier who had contact with hamdi, every official who dealt with issue. Old WWII case where captured german soldiers wanted De Novo hearing. Court deferred in interfering with military proceedings. Answers your question of why you would want a deferential standard. Cases like Milligan (old civil war case I think) took place AFTER war over. This is first habeas case that took place while still in heat of war (right?). In Hamdi and Lynn defendants wanted all Al Queda operatives in custody to come to court. We can’t do that in the middle of a war [my notes – would compromise security]. So we can’t have De Novo review.

C: Some sources have admitted that US uses moderate physical pressure to obtain crucial information. Should international law step in?

H: Yes, if the techniques are cruel and inhumane (I think he said that). State dep’t once said this about torture: Prohibite, categorically denounced, no official may use it or tolerate it, the law contains no provisions that permits it on grounds of exigent circumstances, etc. That was our pre 9/11 position. When we are looking for international support in the war on terror and we saying that doesn’t apply now, that is dangerous.
Suppose though that there is a ticking time (nuclear) bomb and we have somebody who knows. Well there, everybody knows what happens (You torture the bastard). And afterwards, maybe the torturer will have a necessity defense for prosecution. But this isn’t when torture has been being used.

Y: I don’t think it is the policy of the gov’t to engage in torture. Second, abu gharib (sp?) pictures does not mean that it was authorized or legal. Schelessinger report referred to by Harris does not find any authorization by higher ups. Also, what is it that you can do to interrogate people that isn’t in violation of torture ban. Shouldn’t we at least ask those questions? Isn’t it irresponsible to not ask the question.
So the torture convention which we ratified in ’92. There is torture and cruel/inhumane treatment. There is no statute that makes it a criminal act to engage in cruel/inhumane. Also lots of docs at time of adoption that state that because the cruel/inhumane standard so amorphous, no means of figuring out if in violation, so the admin at time of adoption didn’t want to fully get behind the standard by instiuting criminal punishment for doing it. Example - Is denying an attorney cruel/inhumane? Maybe.
In the war on terrorism, the most important commodity is information, which is the only way to stop them. As such, in this sort of conflict, by the circumstances we are placed in, we have heightened need to gain information.

C: Why can’t OLC share the legal justification for doing what it does on torture [prof. cuellar sends this - The question about keeping OLC memos secret wasn't primarily about the torture memos (though these were also kept secret) but about memos involving the authority of state and local law enforcement to get involved in civil immigration enforcement.]

Y: I know the opinion exists, but I have to admit I never read it. One possibility is classified information – but that is unlikely. Second is the attorney-client privilige – yes it is debatable whether such a thing exists for the government, but both the Clintons and the Bushes felt that when their admin went to the OLC, they were the client seeking legal advice, and they don’t want that advice shared.

H: You raise an interesting question about the duties of a government lawyer in those circumstances, but I do think to find the client we have to look at the whole executive, and not just the white house. One problem we have had due to this client policy is that we have been having policies determined in secret – where the white house knows, but the rest of the executive may not. Yes we have to protect information, but there is also a need to have some of these debates public debates. Schlessinger report speaks of isolation, use of stress positions, sleep/light deprivation, fear of dogs used and that is where you end up when you don’t set clear stds.

Y: I think there is a difference btwn. Law and policy. The Geneva conventions apply to nation states that have signed the treaty. Al Queda is not a nation, has not signed it, and has showed no desire to obey them. Now we can have a policy debate about whether we should give Geneva status to al queda members, but the government had that debate and made its decision. For that reason, the Geneva convention clearly apply in iraq, but Afghanistan was a tougher question. Afghanistan was a signatory nation, but by the taliban’s conduct’s they lost POW protections. It is up to the President to determine how this treaty apply (I think he said this)

C: Last question: No gov’t interest more compelling than the security of the nation. What exactly is the argument that the COURT has the experience/authority to arbiter claims on security against the executive. Why a judge?

H: I think it is particularly the place of a court to determine under what conditions we can imprison somebody. Its one thing to say that it is something that courts shouldn’t get into to determine prosecution of a war. But it is another thing to arrest people in Chicago, put people in the brig for three years, and then have the court accept an answer that they have no need to inquire.

Y: I have no comment on that point.

That brings up audience questions, but as I am getting close to carpal tunnel syndrome of the night, I will not be blogging that.