Bar Watch Bulletin August 9, 2004

Int'l Human Rights Awards, Supreme Court Docket, war on terror
August 09, 2004

International Human Rights Award

At the International Human Rights Award session, Washington Post writer Bob Woodward discussed his lengthy interview with President Bush. Woodward detailed his questions about weapons of mass destruction and the war in Iraq. One of the President's answers to the reason why we attacked Iraq concerned weapons of mass destruction and why we have a responsibility to liberate the people of Iraq. Woodward said he responded that he didn't believe that this was in the Constitution and that the President's motivating factor was "grandiose."

Woodward pointed out that George Tenet claimed that the evidence of weapons of mass destruction was a slam dunk. President Bush had some reservations and thought that the evidence wasn't strong enough. Woodward said that "the President's instincts were right." Tenet reiterated his belief that the evidence was a slam dunk. Woodward said that the President should have stayed with his instinct.

Woodward explained how he asked the president about how history will view this effort. Bush replied, "I don't know, we will all be dead." Woodward said this was "part dodge but part truth." Woodward then went on to say that the most important aspect of a President's character is courage--even when you have to walk alone. He further noted that one thing he likes about this president is that he is willing to talk candidly.

On the Docket: The Supreme Court and The War on Terror

Pepperdine Law Professor Douglas Kmiec defended the President's record concerning the detainee cases before the U.S. Supreme Court, stating, "The President has stayed within his constitutional limits. Once the President has been authorized, day-to-day strategic campaigns are up to the Executive Branch. This includes detainment."

Journalist Tony Mauro said that the Court is pretty much on balance and that the justices handled themselves pretty well. "The Court is usually deferential in times of war. But not this war. It is a war without end."

Suzanne Spalding from the Task Force on the Treatment of Enemy Combatants and chairman of the Standing Committee on Law and National Security believes that the Court ducked the most important issue, which was the Padilla case. She is worried that "the battlefield can be anywhere where there are terrorists (such as O'Hare Airport). Be prepared for the military to take action at an apartment complex. Posse Comitatus does not apply." She continued to say that Congress and the American public must become more involved in the debate and that we must see some parameters established. "We don't have an appropriate legal way of handling things." She later on observed critically that the lawyers in this Administration are asking for maximum flexibility.


Marbury vs. Madison II: The President's Power to Detain and Prosecute Prisoners in the War on Terrorism

A spirited exchange took place during this panel. We recount some of the fireworks:

Barbara Olshansky, the Deputy Legal Director for Litigation and Movement Support of the progressive Center for Constitutional Rights started things off. CCR represents many Guantanamo detainees. She stated: "Many people detained were simply overstaying their visas which is how we got involved with the Rasul vs. Bush case." She then went on to say that there was an assumption by this Administration that everyone was a terrorist. She claimed CCR received much hate mail after filing suit against the government to get detainees their day in court. She said that once they filed the flood gates opened. "We felt that the Executive Branch's decision left us in a position to say that international law can't go out the window."

Judge Nathaniel Jones, who filed a brief supporting the petitioners in Rasul, stated: "It was a very simple call for us to file an amicus brief against the government." He said that he was born of an era where the fight for civil liberties was crucial. Being involved in the case was an easy decision- he wanted there to be a protection of those same civil liberties.

Johns Hopkins Professor Ruth Wedgwood stated: "9/11 made us think about whether we should use the law of armed conflict as one paradigm." She said that prior to 9/11, we never went after the terrorist infrastructure, but just individuals.

Olshansky responded: "There is a cynicalness of the viability of the American system… We've gone to an entirely different paradigm and left the original one.…Ted Olson and Paul Clement (of the Justice Department)were very arrogant. They said that you don't have the right to micromanage us. We don't have to obey the Freedom of Information Act. That arrogance is the hallmark of this Administration." She continued to say that this Administration is struggling with habeas corpus being extended everywhere and that Guantanamo is undermining the independence of the judiciary.

Judge Jones responded that the Supreme Court provided a ringing reaffirmation that the Constitution is well made to handle a crisis. "To have the President say what the Constitution provides is a throwback and the Supreme Court stepped to the plate and met the challenge."

Olshansky added that the President's detention policy is "kidnapping and is against the law. There is no basis for it." She pointed out that he was detaining people from South Africa, not necessarily from Afghanistan and Pakistan: "This is the most renegade Administration I've ever studied in my life. This government sat down with advisors and lawyers to commit abuse and torture and didn't want to be held responsible. The people in Guantanamo Bay are an experiment for Abu Ghraib."