The Rule of Law and the Global War on Terrorism:
Symposium Schedule

Thursday, November 13, 2008

8:00 - 9:30 a.m.
Registration and Continental Breakfast
Bradbury Thompson Alumni Center

Setting the Conditions for the War on Terrorism

9:30 - 9:45 a.m.
Announcements
Timothy M. Belsan, (Editor-in-Chief, Volume 48, Washburn Law Journal)
Welcoming Remarks
Thomas J. Romig, Dean and Professor of Law, Washburn University School of Law

9:45 - 10:45 a.m.
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."1 Our panelists will discuss 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.

Introductions: Thomas J. Romig
Moderator: David E. Graham, Colonel (ret.); Executive Director, The Judge Advocate General's Legal Center and School, U.S. Army
Panelists:
- Robert F. Turner, Professor, General Faculty, and Associate Director, Center for National Security Law, University of Virginia School of Law
- William C. Banks, Professor, Syracuse University College of Law, and Director, Institute for National Security & Counterterrorism
- Sean Watts, Assistant Professor of Law, Creighton University School of Law

10:45 - 11:00 a.m. - Break

11:00 - 11:45 a.m.
Defending Humanity— When Force Is Justified and Why

Introduction: William G. Merkel (Washburn Law)
George Fletcher, Cardozo Professor of Jurisprudence, Columbia Law School

11:45 a.m. - 1:00 p.m. - Lunch Provided
The Northern Ireland Experience— Effects of Detention and Interrogation Policy on Terrorism Rates

Introductions: J. Lyn Entrikin Goering (Washburn Law)
Celia Rumann, Associate Professor of Law, Phoenix School of Law
Michael P. O'Connor, Associate Professor of Law, Phoenix School of Law

The U.S. Administration Responds: Detain and Interrogate

1:00 - 2:00 p.m.
Defining War and Terrorism— Redrawing Conceptual Lines

War is not an inevitable government response to terrorism. Other policy choices were available when Congress authorized armed force in response to the 9/11 attacks. Panelists will discuss whether aggression is the appropriate response to terrorism, and how a war against terrorism differs from a war against a nation-state. When is preemptive force warranted? Is the U.S. counterterrorism effort a "war" or an "armed conflict"? If terrorism is the enemy, are suspected terrorists "enemy combatants," "prisoners of war," or common criminals?

Introductions: William Rich (Washburn Law)
Moderator: William Banks, Professor, Syracuse University College of Law, and Director, Institute for National Security & Counterterrorism
Panelists:
- Mary Ellen O'Connell, Robert and Marion Short Professor of Law, University of Notre Dame Law School
- George Fletcher, Cardozo Professor of Jurisprudence, Columbia Law School
- Noah Weisbord, Visiting Assistant Professor of Law, Duke University School of Law

2:05 - 2:50 p.m.
Torture Team— Abuse, Lawyers, and the Possibility of Criminal Responsibility

Introduction: Myrl L. Duncan (Washburn Law)
Philippe Sands, Professor of Law and Director, Centre on International Courts and Tribunals, University College of London

2:50 - 3:05 p.m. - Break

3:05 - 4:05 p.m.
Detention and Interrogations— U.S. Compliance With International Norms

After 9/11, the U.S. government undertook to detain and interrogate suspected "enemy combatants" at facilities in Afghanistan, Iraq, and Guantánamo 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. Panelists will discuss the U.S. government's interpretation of this prohibition as defined by domestic and international law. The panel will also explore 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.

Introductions: Ronald C. Griffin (Washburn Law)
Moderator: Robert F. Turner, Professor, General Faculty, and Associate Director, Center for National Security Law, University of Virginia School of Law
Panelists:
- Joseph Margulies, Clinical Associate Professor of Law and Assistant Director, Roderick MacArthur Justice Center, Northwestern University School of Law
- David E. Graham, Colonel (ret.); Executive Director, The Judge Advocate General's Legal Center and School, U.S. Army
- Sean Watts, Assistant Professor of Law, Creighton University School of Law

4:05 - 4:15 p.m.
Announcements
Thomas J. Romig, Dean and Professor of Law, Washburn University School of Law

4:00 - 5:30 p.m.
Optional Book Signing

4:30 - 6:00 p.m.
Optional Tour: Brown v. Board of Education National Historic Site

6:30 - 9:00 p.m. - Dinner, Sunflower Room, Capitol Plaza Hotel (pre-registration required)
Takeover— Return of the Imperial Presidency

Introduction: Thomas J. Romig
Charlie Savage, Washington correspondent for the New York Times

For Dinner on Your Own see Restaurant Guide (34 KB PDF)

Friday, November 14, 2008

8:00 - 9:00 a.m.
Registration, Continental Breakfast, Optional Book Signing
Bradbury Thompson Alumni Center

The U.S. Congress and Courts Respond: Detainee Treatment Act, Military Commissions, and Habeas Corpus

9:00 - 9:40 a.m.
U.S. Detention Policy for Foreign Nationals Captured in Combat

Introduction: Thomas J. Romig
Ambassador Pierre-Richard Prosper, Former U.S. Ambassador-at-Large, Office of War Crimes Issues, Office of the Secretary of State; Of Counsel, Arent Fox, LLP

9:45 - 10:15 a.m.
Representing Detainees in Court

Introduction: Michael Kaye (Washburn Law)
Joseph Margulies, Clinical Associate Professor of Law and Assistant Director, Roderick MacArthur Justice Center, Northwestern University School of Law

10:15 - 10:30 a.m. - Break

10:30 - 11:30 a.m.
Detainee Treatment— Congress and the Courts Respond

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. Panelists will discuss legislative and judicial responses to the Administration's actions, including whether U.S. counterterrorism policy reflects a true balance of power among the three "co-equal" branches. In particular, the panel will address congressional enactments and the implications of recent Supreme Court decisions including Boumediene v. Bush, 128 S. Ct. 2229 (2008), which struck down Congress' attempt to strip federal courts of habeas corpus jurisdiction over Guantánamo detainees.

Introductions: John J. Francis (Washburn Law)
Moderator: Joseph Margulies, Clinical Associate Professor of Law and Assistant Director, Roderick MacArthur Justice Center, Northwestern University School of Law
Panelists:
- Samuel V. Jones, Assistant Professor, The John Marshall Law School
- Ambassador Pierre-Richard Prosper, Former U.S. Ambassador-at-Large, Office of War Crimes Issues, Office of the Secretary of State; Of Counsel, Arent Fox, LLP
- Gabor Rona, International Legal Director, Human Rights First

11:30 a.m. - Noon
Creating Domestic Terror Courts

Introduction: Michael Hunter Schwartz (Washburn Law)
Amos Guiora, Professor of Law, The S.J. Quinney College of Law, University of Utah

Noon - 1:00 p.m. - Lunch Provided
The Difficulty of Defending Detainees

Introduction: J. Lyn Entrikin Goering (Washburn Law)
David J. R. Frakt, Associate Professor of Law and Director, Criminal Law Practice Center, Western State University College of Law

A New Administration: The Way Forward

1:00 - 2:00 p.m.
The Proper Forum— 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. Panelists will discuss the fate of military commissions in light of Boumdiene, and will explore other alternatives for adjudicating detainees.

Introductions: Nancy G. Maxwell (Washburn Law)
Moderator: David J. R. Frakt, Associate Professor of Law and Director, Criminal Law Practice Center, Western State University College of Law
Panelists:
- Amos Guiora, Professor of Law, The S.J. Quinney College of Law, University of Utah
- Gabor Rona, International Legal Director, Human Rights First
- Samuel V. Jones, Assistant Professor, The John Marshall Law School

2:05 - 3:05 p.m.
Global War on Terrorism and Accountability for 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 law. Panelists will debate whether U.S. government leaders, lawyers, and others may be held to account under domestic and international law for engaging in actions that some observers consider war crimes, and, if appropriate, how to bring responsible parties to justice.

Introductions: J. Lyn Entrikin Goering (Washburn Law)
Moderator: Mary Ellen O'Connell, Robert and Marion Short Professor of Law, University of Notre Dame Law School
Panelists:
- Philippe Sands, Professor of Law and Director, Centre on International Courts and Tribunals, University College of London
- Noah Weisbord, Visiting Assistant Professor of Law, Duke University School of Law
- Robert F. Turner, Professor, General Faculty, and Associate Director, Center for National Security Law, University of Virginia School of Law

3:05 - 3:20 p.m. - Break

3:20 - 4:20 p.m.
The Way Forward— 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. Panelists will discuss the difficult legal issues confronting the new Administration. Will the unitary executive doctrine continue to shape the nation's response to the war on terrorism? Will Congress acknowledge and accept responsibility for exercising its constitutional role in protecting national security? With the benefit of hindsight, what advice can experts offer for the next phase of the war on terrorism?

Symposium participants are encouraged to join in the panel discussion by identifying possible solutions for mapping The Way Forward.

Moderator: Thomas J. Romig, Dean and Professor of Law, Washburn University School of Law
Panelists:
- Mary Ellen O'Connell, Robert and Marion Short Professor of Law, University of Notre Dame Law School
  - See "The Way Forward: Post-9/11 Principles," Jurist: Legal News & Research (November 25, 2008).
- Philippe Sands, Professor of Law and Director, Centre on International Courts and Tribunals, University College of London
- David E. Graham, Colonel (ret.); Executive Director, The Judge Advocate General's Legal Center and School, U.S. Army

4:20 p.m.
Closing Remarks
Thomas J. Romig, Dean and Professor of Law, Washburn University School of Law

The Rule of Law and the Global War on Terrorism: Symposium Schedule