TOPEKA, Kan. - When it comes to war, something we may not give much thought are the policy changes and legal options that came with the decision to invade Iraq. It's up for discussion at Washburn University School of Law.
Legal and military professionals have come from all over the world to speak at "The Rule of Law and Global War on Terrorism: Detainees, Interrogations and Military Commissions" symposium being hosted by the university November 13 - 14.
The guest speakers are giving insight into policy choices when it comes to war: What the Bush administration has done and what the legal choices are for the incoming Obama administration.
"The goal is that each of us leaves with a better understanding of the situation, a better understanding of the pertinent law and the pertinent policy considerations that go into each of these decisions and can make better decisions based on that," said law student and editor of the Washburn Law Journal, Tim Belsan.
"As lawyers we're all going to be able to help shape policy in the future and policy affects every single person," said Dorsey. "The lawyers that are sitting in there today will be the legislators tomorrow."
Topics discussed Thursday build into the Friday conversation. Thursday's were: Setting the Conditions for the War on Terrorism; and The U.S. Administration Responds: Detain and Interrogate. The panelists discussed how the Bush Administration's broad interpretation of the unitary executive theory set the stage for the Nation's response to the unprecedented events of 9/11. Panelists discussed the U.S. government's interpretation of this prohibition as defined by domestic and international law. The panel also explored the ramifications of noncompliance with international laws as well as the scope, nature and justification of the U.S. counterterrorism policy as it relates to national security.
Setting the Stage: The Unitary Executive Theory
In times of national crisis, the rule of law and bedrock principles of democracy are most in danger of giving way to government concern for national security. On September 25, 2001, the Office of Legal Counsel advised the White House, "The centralization of authority in the President alone is particularly crucial in matters of national defense, war and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch."
Detention and Interrogations
After 9/11, the U.S. government undertook to detain and interrogate suspected "enemy combatants: at facilities in Afghanistan, Iraq, and Guantanamo Bay. The Bush Administration claims authority for these actions based on the President's role as Commander-in-Chief of the Armed Forces. The U.S. government has sought to narrow the definition of torture by authorizing "enhanced interrogation techniques," despite an internationally accepted prohibition against torture.
Immediately after 9/11, Congress authorized the use of armed force against those responsible for the attacks, thus assuring the President a powerful role as Commander-In-Chief. Yet as time went on, Congress and the courts alike would inevitably play increasingly important oversight roles in the exercise of executive power.
Friday's topics are: The U.S. Congress and Courts Respond: Detainee Treatment Act, Military Commissions, and Habeas Corpus; and The New Administration: The Way Forward.
Military Commissions or Other Alternatives?
On November 13, 2001, President Bush ordered the detention of suspected terrorists subject to trial by military commission. After the Supreme Court ruled in 2006 that the President lacked authority to unilaterally establish military commissions, Congress enacted the Military Commissions Act of 2006, effectively endorsing the use of military tribunals to try detainees. In Boumediene v. Bush, 128 S. Ct. 2229 (2008), the Supreme Court held that the military commissions established by Congress are not a sufficient substitute for the constitutional right of habeas corpus.
Global War on Terrorism and War Crimes
In May 2008, the Department of Justice released a report of its Office of Inspector General detailing the outcome of an investigation into the treatment of alien detainees. This and other recently de-classified reports on detainee treatment demonstrate that "enhanced interrogation techniques" are highly suspect when viewed in light of federal laws, treaties, and customary international laws.
Legal Choices in the Global War on Terrorism
On January 20, 2009, the next President will inherit responsibility for a host of foreign policy issues related to the global war on terrorism.