Civil liberties in times of crisis.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion

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. *


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 Word 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.

([dagger]) Professor of International Law, London School of Economics; now Judge, International Court of Justice.


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 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 fights. You find the source of their fights 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...

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